We defend and advise government contractors, military personnel, and federal employees who have polygraph examination issues. We do this as part of our security clearance practice. The polygraph examination is a central part of the security clearance process for many employees, depending on their required level of access. For certain federal agencies and clearances, like for sensitive compartmented information (SCI) access, many federal agencies require a polygraph examination. Many clients come to us when they have failed a polygraph examination. They also consult with us when they are facing the decision to make certain disclosures in connection with a polygraph examination or discontinue the process. Additionally, clients meet with us when polygraph examination issues result in a Statement of Reasons.
What is a Polygraph?
The polygraph is a machine designed to detect and record changes in physiological characteristics, such as an individual’s pulse and breathing rates. Some people also refer to it as a lie detector. The exam measures these physiological responses while the individual answers a series of questions. The goal of the polygraph is to attempt to determine whether the individual is being truthful, particularly about issues that could pose national security risks. These risks can include such issues as foreign connections, drug use, financial debts, or criminal activity. The exam is usually administered at the federal agency where you are seeking security access. The exam will then be given by an experienced polygraph examiner. Depending on the type of polygraph examination, the testing session could last 2 to 7 hours.
When is the Polygraph Exam Used?
Polygraph tests are typically used during the background investigation process for higher-level security clearances.They are discussed in Security Executive Agent Directive 2 and DOD Instruction 5210.91. In some polygraphs, the examiner asks a series of yes-or-no questions related to national security concerns, such as whether the applicant has committed espionage or had unauthorized contact with foreign nationals. Additional government guidance on the use of polygraphs within the Intelligence Community (IC) is provided in ICPG 704.6. The exam is meant to be one of many tools in determining a person’s reliability and trustworthiness. While polygraphs are not foolproof and can be influenced by a variety of factors — such as nervousness, medical conditions, or even the examiner’s approach — the results can have a significant impact on the outcome of a clearance investigation. Additionally, the exam process itself may lead to other security disclosures outside of the testing phase. A failed polygraph, however, does not automatically result in disqualification, but it is a potential red flag that must be considered and addressed.
Polygraph Exam Failures During Clearance Investigations
If you fail a polygraph examination, it is important to understand that this does not necessarily mean the end of your security clearance process. The next step typically involves a follow-up interview with the agency conducting the investigation, where you may be asked to discuss issues related to the results of the polygraph. During this interview, it is crucial to be honest, calm, and cooperative. Some applicants may find themselves in a situation where they fail the polygraph, either due to physiological reasons, anxiety, or other factors. This is fairly common. Understanding how to handle this outcome is essential for safeguarding your clearance prospects. We represent individuals in polygraph and security clearance matters.
In many cases, polygraph results may be inconclusive or misinterpreted, and further clarification or re-testing might be necessary. If the failure is related to a specific issue, such as a misunderstanding or anxiety, providing evidence or context may help clear up any doubts. However, if there is a legitimate concern — such as involvement in illegal activities or a failure to disclose critical information during the background check — the results could jeopardize your eligibility for a security clearance. If criminal issues come up, it is important to discuss these with counsel to see if the continued polygraph examination process is in your best interests. Some polygraph disclosures can lead to criminal concerns.
Additional Polygraph Examinations
If you are unable to pass a polygraph examination, you should consider requesting a second (or third) examination, especially if you believe that anxiety or other non-deceptive factors have affected the results. In some cases, it has taken some individuals 4 or 5 polygraph examinations to pass. You may also want to consult with a security clearance lawyer with expertise in polygraph examinations who can help you understand the security clearance process.
If there are unique issues that led to the failure — such as a past criminal act or undisclosed financial problems — you must be prepared to address these concerns in a transparent and honest manner. Failure to do so could be interpreted as a lack of trustworthiness, which could ultimately harm your clearance prospects. In some cases involving criminal issues, legal advice about whether to continue in the process is crucial. It is critical to maintain a high level of honesty and transparency throughout the polygraph process. Review your background information carefully if there are potential security concerns at issue. If you are particularly concerned about the polygraph examination process, consider speaking with a security clearance lawyer in advance, who can advise you on legal issues that could come up
Additional Considerations
A failed polygraph for a security clearance is a serious issue, but it does not necessarily spell the end of your clearance application. Keep in mind that when important issues come up during a polygraph examination, an individual, depending on the agent can request to have counsel nearby or observing the process. By understanding the polygraph process, being prepared to address any concerns in the aftermath, and seeking professional advice when necessary, you can increase your chances of successfully navigating this challenge. The key to handling a polygraph failure is to remain honest, transparent, and cooperative throughout the process. With the right approach, you may still be able to resolve any issues and move forward in the security clearance process.
Contact Us
Our security clearance lawyers represent and advise individuals in polygraph and security clearance matters. If you need legal assistance, please contact our office at (703) 668-0070 or at www.berrylegal.com to schedule a consultation.
We are often asked about whether or not a Virginia employer can require an applicant or employee to take a polygraph examination in regards to hiring or retention decisions. The answer, while generally no, has a number of implications for both Virginia employees and employers. It is important to obtain legal counsel on these issues prior to taking a polygraph examination when issues arise. This article discusses some of the issues that can arise in the context of attempting to require Virginia employees to take a polygraph examination related to their employment.
For Virginia employees, there are both federal and state restrictions on polygraph usage. It is important to know both areas of law.
Employee Polygraph Protection Act
On the federal level, Congress enacted the Employee Polygraph Protection Act, 29 U.S.C. §§ 2001- 2009 (EPPA of Polygraph Act). The EPPA provides for strict limits on the use of polygraphs in the workplace for employees and applicants. The EPPA bars most types of employers in Virginia (and other states) from requiring or even suggesting that a current employee or job applicant take a polygraph examination. The EPPA also prohibits employers from utilizing the results of any polygraph examination.
The EPPA does not necessarily apply to Virginia employees who work for Federal, State and local governments. Polygraph examinations can often be part of the legal processing of a federal security clearance. It also does not apply to private sector employees engaged in security-related activities (e.g. Security Guard, Armored car services). The Polygraph Act also permits polygraph testing, subject to restriction, of certain types of employees who are reasonably suspected of involvement in workplace theft or embezzlement that resulted in an economic loss to the employer. The Department of Labor has provided a good summary of the law under the EPPA act here.
When polygraph examinations are permitted for private sector employees in Virginia, there are numerous strict rules that most be followed. These include “including the right to a written notice before testing, the right to refuse or discontinue a test, and the right not to have test results disclosed to unauthorized persons.” See DOL Guidance.
The courts in Virginia, federal and state, have not had occasion to rule on these issues too often, but these cases likely get resolved early due to employer liability. Harmon v. CB Squared Servs., 624 F. Supp. 2d 459, 472-472) (E.D.Va., Jan. 29, 2009) (Former employee was asked to submit to polygraph examination by employer and was told that his examination revealed deception; employer not granted dismissal of case because facts show that the employer had violated EPPA by causing the employee to take a polygraph examination and by referring to the results of the examination at the meeting to discuss the test results).
Should an employer be found liable by a court under the EPPA for not following the law regarding polygraph use, the employer can be held liable for: (1) penalties up to $10,000; (2) lost wages, benefits and (3) attorney’s fees. There is also equitable relief where an individual can seek reinstatement or lost promotions as a result of the violations of the EPPA. In other words, employers need to be extremely careful when considering the use of polygraph examinations under the EPPA.
Virginia State Polygraph Protections
In the Commonwealth of Virginia, there are also additional protections for employees with regards to polygraph examinations. Pursuant to the Virginia Code, the only major restriction on employer polygraph testing in Virginia involves the subject matter of such testing. Virginia bars questions about an applicant’s prior sexual activities unless it is related to a conviction of such a criminal violation of the laws of Virginia.
The 1977 Virginia law, in Va. Code Ann. § 40.1-51.4:3, titled the Prohibition of use of certain questions on polygraph tests for employment, states as follows:
