An “honesty testing device” is more than a lie detector or polygraph. It includes a deceptograph, voice stress analyzer, psychological stress evaluator or any similar device that is used to render an opinion about the honesty or dishonesty of an individual.

In general you may not do any of the following:

• Directly or indirectly require or suggest that an employe or prospective employe take a lie detector test.

• If they have taken a lie detector test you may not use, accept, refer to or inquire about the results of the test.

• Discharge, discipline, discriminate, deny employment, or deny promotion to an employe or prospective employe that refuses to take a lie detector test or files a complaint against you on this issue. You are also prohibited from threatening them in any way to take a lie detector test.

There are some exceptions if all of the following conditions apply:

• The test is administered in connection with an ongoing investigation involving economic loss or injury to your business, including theft, embezzlement, misappropriation or unlawful industrial espionage.

• And the employe had access to the property that is the subject of the investigation.

• And you have a reasonable suspicion that the employe was involved in the incident or activity under investigation.

• And you, or someone representing you for at least 3 years, sign a statement, that is given to your employee before the test, that specifies the incident or activity being investigated and the basis for testing an employee. The statement must identify the specific economic loss or injury to your business, indicates that the employe had access to the property that is the subject of the investigation and describes the basis of your reasonable suspicion that the employe was involved in the incident or activity under investigation.

The exemptions do not apply unless all of the following requirements are fulfilled:

• The employee is permitted to end the test at any time.

• And the employee is not asked questions in a manner that degrades, or needlessly intrudes on them.

• And the employee is not asked any question about religious beliefs or affiliations, political beliefs or affiliations, sexual behavior, beliefs or opinions on racial matters.

• And the examiner does not conduct the test if there is sufficient written evidence provided by a physician that the examinee is suffering from a medical or psychological condition or undergoing treatment that might cause abnormal responses during the testing.

• And the employee is provided with reasonable oral and written notice of the date, time and location of the test before the test is administered.

• And the employee is told of his or her right to obtain and consult with legal counsel before each phase of the test.

• And the employee is informed orally and in writing of the nature and characteristics of the tests and of the instruments involved.

• And the employee is informed orally and in writing whether or not the testing area contains a 2-way mirror, a camera or any other device through which the test can be observed.

• And the employee is informed orally and in writing whether or not any device other than the polygraph, including any device for recording or monitoring the test, will be used.

• And the employee is informed orally and in writing that you or the examinee may, after so informing the employee make a recording of the test.

• And the employee is read and signs a written notice informing them that he or she cannot be required to take the test as a condition of employment.

• And the employee is read and signs a written notice that any statement made during the test may constitute additional supporting evidence for the purposes of an adverse employment action.

• And the employee is read and signs a written notice of the limitations on the use of a polygraph test under these laws.

• And the employee is read and signs a written notice of the legal rights and remedies available to the employee under these laws.

• And the employee is read and signs a written notice of the legal rights and remedies available to the examinee if the polygraph test is not conducted in accordance with these laws.

• And the employee is read and signs a written notice that they have a right to review all questions to be asked during the test; and is informed of the right to end the test at any time.

• And the examiner may not ask the employee any question during the test that was not presented in writing for review to them before the test.

• And before you take any adverse employment action against the employee you must provide the employee with a written copy of any opinion or conclusion rendered as a result of the test. You must also supply the employee with a written copy of the questions asked during the test and the corresponding charted responses and offer the employee the opportunity to explain any questionable responses or to retake the examination or both. If the employee’s response or reexamination clarifies their questionable response/s, the results of the initial tests can not be told to anyone and must be corrected or removed from their personnel records.

The lie detector examiner must:

• Conduct and complete 5 or less polygraph tests on any day and limit tests to 90 minutes or less.

• Administer tests at a reasonable time and location.

• Maintain at least a $50,000 bond or an equivalent amount of professional liability coverage.

• Render opinions or conclusions about the test in writing and based solely on an analysis of polygraph test charts.

• Restrict information in his or her reports to admissions, information, case facts and interpretation of the charts relevant to the purpose and stated objectives of the test.

• Refrain from making any recommendation concerning the employment of the examinee.

• Maintain all opinions, reports, charts, written questions, lists and other records relating to the test for at least 3 years after administration of the test.

No one other than the employee may disclose information obtained during a polygraph test, except that a polygraph examiner may disclose information acquired from a polygraph test to the employee or a person specifically designated in writing by the employee. These laws apply even if the employee has a contract. Violation of any of these laws may result in a fine up to $10,000.

Practical advice

There may be occasions, especially when a theft occurs, when you may consider lie detector tests for your employees. As you can understand from reading the above summary, these laws are written to completely protect the employee from abuse. Even though the law does not require it, you may wish to have an attorney monitor your testing procedures to insure that you have complied with every aspect of the law.

Lie detector tests may seem to be a simple way of getting at the truth; but there may be very significant consequences for chiropractors that choose to use them. The law requires that you be fair in administering the test, so it is likely that honest employees will have to be tested along with the employee that you suspect of dishonesty. The effect on morale can be devastating and can lead to honest employees leaving your practice because their honesty has been questioned.

If you believe lie detector tests are necessary you should meet with each employee that is to be tested individually so that you can explain the situation and why you have to test them. After the test be sure to reinforce your confidence in them and give them an opportunity to vent, if necessary. Remember, even though you may be tempted to discuss the test results of the dishonest employee, the law forbids you to do so.

Statute excerpts

111.37 Definitions
111.37(2) Prohibitions on lie detector use
111.37(3) Notice of protection
111.37(5) Exemptions
111.37(8) Enforcement provisions

Use of honesty testing devices in employment situations.

111.37(1) Definitions. In this section:

111.37(1)(a) “Employer”, notwithstanding s. 111.32 (6), means any person acting directly or indirectly in the interest of an employer in relation to an employe or prospective employe. “Employer”, notwithstanding s. 111.32 (6), does not include the federal government.

111.37(1)(b) “Lie detector” means a polygraph, deceptograph, voice stress analyzer, psychological stress evaluator or other similar device, whether mechanical or electrical, that is used, or the results of which are used, to render a diagnostic opinion about the honesty or dishonesty of an individual.

111.37(1)(c) “Polygraph” means an instrument that fulfills all of the following requirements:

111.37(1)(c)1 Records continuously, visually, permanently and simultaneously any changes in cardiovascular, respiratory and electrodermal patterns as minimum instrumentation standards.

111.37(1)(c)2 Is used, or the results of which are used, to render a diagnostic opinion about the honesty or dishonesty of an individual.

111.37(2) Prohibitions on lie detector use. Except as provided in subs. (5) and (6), no employer may do any of the following:

111.37(2)(a) Directly or indirectly require, request, suggest or cause an employee or prospective employee to take or submit to a lie detector test.

111.37(2)(b) Use, accept, refer to or inquire about the results of a lie detector test of an employee or prospective employee.

111.37(2)(c) Discharge, discipline, discriminate against or deny employment or promotion to, or threaten to take any such action against, any of the following:

111.37(2)(c)1 An employe or prospective employe who refuses, declines or fails to take or submit to a lie detector test.

111.37(2)(c)2. An employe or prospective employe on the basis of the results of a lie detector test.

111.37(2)(d) Discharge, discipline, discriminate against or deny employment or promotion to, or threaten to take any such action against, an employee or prospective employee for any of the following reasons:

111.37(2)(d)1. The employee or prospective employee has filed a complaint or instituted or caused to be instituted a proceeding under this section.

111.37(2)(d)2. The employee or prospective employee has testified or is about to testify in a proceeding under this section.

111.37(2)(d)3. The employee or prospective employee, on behalf of that employee, prospective employee or another person, has exercised any right under this section.

111.37(3) Notice of protection. The department shall prepare and distribute a notice setting forth excerpts from, or summaries of, the pertinent provisions of this section. Each employer that administers lie detector tests, or that has lie detector tests administered, to its employees shall post and maintain that notice in conspicuous places on its premises where notices to employees and applicants for employment are customarily posted.

Exemptions.

111.37(5)(a) Except as provided in sub. (6), this section does not prohibit an employer from requesting an employee to submit to a polygraph test if all of the following conditions apply:

111.37(5)(a)1 The test is administered in connection with an ongoing investigation involving economic loss or injury to the employer’s business, including theft, embezzlement, misappropriation and unlawful industrial espionage or sabotage.

111.37(5)(a)2. The employee had access to the property that is the subject of the investigation under subd. 1.

111.37(5)(a)3. The employer has a reasonable suspicion that the employee was involved in the incident or activity under investigation.

111.37(5)(a)4. The employer executes a statement, provided to the examinee before the test, that sets forth with particularity the specific incident or activity being investigated and the basis for testing particular employees; that is signed by a person, other than a polygraph examiner, authorized legally to bind the employer; that is retained by the employer for at least 3 years; and that identifies the specific economic loss or injury to the business of the employer, indicates that the employee had access to the property that is the subject of the investigation and describes the basis of the employer’s reasonable suspicion that the employee was involved in the incident or activity under investigation.

111.37(6)(c) The exemptions under sub. (5) (a) to (c) do not apply unless all of the following requirements are fulfilled:

111.37(6)(c)1. Throughout all phases of the test the examinee is permitted to end the test at any time; the examinee is not asked questions in a manner that degrades, or needlessly intrudes on, the examinee; the examinee is not asked any question about religious beliefs or affiliations, political beliefs or affiliations, sexual behavior, beliefs or opinions on racial matters, or about beliefs, affiliations, opinions, or lawful activities regarding unions or labor organizations; and the examiner does not conduct the test if there is sufficient written evidence provided by a physician that the examinee is suffering from a medical or psychological condition or undergoing treatment that might cause abnormal responses during the testing.

111.37(6)(c)2. Before the test is administered the prospective examinee is provided with reasonable oral and written notice of the date, time and location of the test, and of the examinee’s right to obtain and consult with legal counsel or an employee representative before each phase of the test; is informed orally and in writing of the nature and characteristics of the tests and of the instruments involved; is informed orally and in writing whether or not the testing area contains a 2-way mirror, a camera or any other device through which the test can be observed; is informed orally and in writing whether or not any device other than the polygraph, including any device for recording or monitoring the test, will be used; is informed orally and in writing that the employer or the examinee may, after so informing the examinee, make a recording of the test; is read and signs a written notice informing the examinee that the examinee cannot be required to take the test as a condition of employment, that any statement made during the test may constitute additional supporting evidence for the purposes of an adverse employment action under par. (a), of the limitations on the use of a polygraph test under this subsection, of the legal rights and remedies available to the examinee under this section and ss. 905.065 and 942.06, of the legal rights and remedies available to the examinee if the polygraph test is not conducted in accordance with this section and of the legal rights and remedies of the employer under this section; is provided an opportunity to review all questions to be asked during the test; and is informed of the right to end the test at any time.

111.37(6)(c)3. The examiner does not ask the examinee any question during the test that was not presented in writing for review to the examinee before the test.

111.37(6)(c)4. Before any adverse employment action, the employer interviews the examinee on the basis of the results of the test; provides the examinee written copies of any opinion or conclusion rendered as a result of the test, the questions asked during the test and the corresponding charted responses; and offers the examinee the opportunity to explain any questionable responses or to retake the examination or both. If the subsequent responses or the reexamination clarify any questionable response, the results of the initial tests shall not be reported further and shall be removed, corrected or clarified in the employee’s personnel records under s. 103.13 (4).

111.37(6)(c)5. The examiner does not conduct and complete more than 5 polygraph tests on any day and does not conduct any polygraph test that lasts for less than 90 minutes.

111.37(6)(c)6. The test is administered at a reasonable time and location.

111.37(6)(d) The exemptions under sub. (5) (a) to (c) do not apply unless the individual who conducts the polygraph test satisfies all of the following requirements:

111.37(6)(d)1. Maintains at least a $50,000 bond or an equivalent amount of professional liability coverage.

111.37(6)(d)2. Renders no opinion or conclusion about the test unless it is in writing and based solely on an analysis of polygraph test charts, does not contain information other than admissions, information, case facts and interpretation of the charts relevant to the purpose and stated objectives of the test, and does not include any recommendation concerning the employment of the examinee.

111.37(6)(d)3. Maintains all opinions, reports, charts, written questions, lists and other records relating to the test for at least 3 years after administration of the test.

111.37(7) Disclosure of information. No person other than the examinee may disclose information obtained during a polygraph test, except that a polygraph examiner may disclose information acquired from a polygraph test to the examinee or any other person specifically designated in writing by the examinee.

Enforcement provisions.

111.37(8)(a) In addition to the rights, remedies and procedures under ss. 111.375 and 111.39, any employer who violates this section may be required to forfeit not more than $10,000.

111.37(8)(b) The rights, remedies and procedures provided by this section may not be waived by contract or otherwise, unless that waiver is part of a written settlement agreed to and signed by the parties to an action or complaint under this section.