Legal Memorandum: Polygraph Testing in PA

Issue: Considerations for application of Polygraph Testing in Pennsylvania.

In Pennsylvania, the use of a lie-detector test in an employment setting is a criminal violation. “A person is guilty of a misdemeanor of the second degree if he requires as a condition for employment or continuation of employment that an employee or other individual shall take a polygraph test or any form of a mechanical or electrical lie detector test.”  Pa. Cons. Stat. tit. 18, § 7321(a) (1983).  The statute excepts two categories of employees: people in public law enforcement, and people “who dispense or have access to narcotics or dangerous drugs.”  Id. § 7321(b).

Pennsylvania courts permit civil actions based on violations of the statute and have entertained the defense that an employee may consent or acquiesce to taking the test.  The civil action sounds in tort—wrongful discharge—and is based on the public-policy exception to the at-will employment doctrine.  Kroen v. Bedway Sec. Agency, Inc., 430 Pa. Super. 83, 633 A.2d 628 (1993).  Cf. Stape v. Civil Serv. Comm’n, 404 Pa. 354, 172 A.2d 161 (1961) (no just cause for dismissal existed when police officers refused test after cash and checks were found missing from a business). The court in Stape v. Civil Serv. Comm’n, 404 Pa. 354, 172 A.2d 161 (1961), stated that because the test was not reliable, test results cannot be admitted as evidence.  Although the technology has probably become very sophisticated, the court’s comments are still relevant.

We note […]

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