Polygraphs and Lie-Detector Tests for Delaware Employers

Employee theft is on the rise.  This is not terribly hard to believe in light of the current economic forecast.  When the economy heads south, crime generally and theft in particular, escalate, so it’s no surprise that theft in the workplace follows that trend. 

Jon Hyman, of the Ohio Employer’s Law Blog, discusses the increased rate of employee theft in the context of employer’s use of lie-detector tests.  (Jeez, can this guy make a connection or what??)   For an outstanding overview on the issue, see Jon’s post, A Primer on Employee Polygraph Testing, in which he discusses the ins and outs of the Employee Polygraph Protection Act of 1988.

Delaware employers should be aware, though, of the state-specific requirements and prohibitions in this area.  The state statute (19 Del. C. Sec. 704), provides that an employer may not, “require, request or suggest. . . or shall cause, directly or indirectly, any employee or prospective employee to take a polygraph, lie detector or similar test or examination as a condition of employment or continuation of employment.”  Unlike its federal counterpart, the Delaware Polygraph statute provides no exceptions to the general prohibition against the use of lie-detector tests by employers.

And, in case you were wondering, yes, there is a state-court decision interpreting the statute.  In Heller v. Dover Warehouse Market, Inc., the Superior Court denied an employer’s motion for summary judgment, finding that, whether an employee’s consent to take a polygraph could be a valid waiver was an issue of first impression.  Referencing case law from Maryland, Pennsylvania, and the Third Circuit Court of Appeals, the court found that the test to determine the validity of the employee’s consent:

depends upon a jury determination of whether the waiver was compelled as a condition of continued employment. Under this test, if the jury finds the plaintiff was required to sign the waiver as a condition of employment, then the waiver is invalid.

This law has been around long enough that most employers operating in the State are cognizant of its prohibitions.  But, in light of the increasing incidences of workplace theft, this is as good a time as any to review it.  The key for Delaware employers is this:  polygraphs and lie-detectors cannot be used for employees–even in the course of a theft investigation.