New Jersey Section 2C:40A-1 – Employer requiring lie detector test
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New Jersey Law Restricts Employer Use of Lie Detector Tests
New Jersey has a law on the books that restricts employer use of lie detector tests, commonly known as polygraph tests. This law, Section 2C:40A-1 of the New Jersey Code of Criminal Justice, aims to balance the interests of employers and employees when it comes to the use of what some view as an intrusive technology.
Overview of the New Jersey Law
The New Jersey law sets out a few key provisions regarding employer polygraph testing:
- Employers are prohibited from requiring, requesting, or even suggesting that an employee or prospective employee take a lie detector test. This applies to all employees, not just certain classes.
- There are two exceptions where an employer can request a polygraph test: 1) If it is required by law, such as for certain public safety positions, or 2) If it relates to an ongoing investigation into economic loss or injury to the employer’s business (e.g. theft).
- For the economic loss exception, the employee must be given written notice that they can refuse or discontinue the test. Test questions must relate specifically to the investigation.
- Employers are required to provide employees with written notice of their rights, comply with restrictions, and provide a written copy of test results upon request.
- Violations are considered a disorderly persons offense, punishable by up to 6 months imprisonment and/or a fine of up to $1,000.
So in essence, the law prohibits blanket polygraph testing of employees or job candidates, with limited exceptions. It aims to prevent employee coercion and provide transparency around the practice.
Background and Legislative Intent
New Jersey’s law restricting employer lie detector tests has been on the books for decades. The current statute, 2C:40A-1, was enacted in 1978 as part of the state’s criminal code.
The legislative history indicates the law was intended to curb abusive uses of polygraph testing by private employers. There were concerns that employees were being wrongly terminated based on inconclusive or inaccurate polygraph results.
Some also viewed routine polygraph testing as an invasion of privacy. The law’s sponsors wanted to protect employees from being forced to take tests against their will.
At the same time, legislators recognized there could be legitimate uses in investigating economic crimes against the employer. The law represents a compromise between employee rights and employer interests.
Employee Protections and Limitations
The New Jersey law provides a number of specific protections for employees:
- It prohibits employers from firing or disciplining employees solely for refusing or stopping a polygraph test.
- Employees have a right to written notice of the voluntary nature of any tests.
- Test questions must be relevant and cannot delve into personal matters unrelated to the investigation.
- Employees can request a written copy of test results.
However, the law does not ban polygraph testing outright. The economic loss exception leaves room for use in theft or fraud investigations.
Critics argue this still leaves employees vulnerable to overly intrusive questioning. But courts have generally upheld the law as striking an appropriate balance.
Enforcement and Penalties
The New Jersey law makes it a disorderly persons offense for employers to violate the statute’s provisions. This is a misdemeanor-level criminal charge.
Potential penalties include:
- Fines up to $1,000
- Imprisonment for up to 6 months
- Community service
To date, there have not been many criminal prosecutions under the law. But employees can file civil lawsuits against employers for violations or wrongful termination. Remedies can include:
- Reinstatement and back pay
- Compensatory damages for distress
- Punitive damages to deter future misconduct
While costly, these lawsuits remain relatively uncommon. But the potential liability gives employers incentive to follow the law.
Polygraph Testing in the Workplace
The use of polygraph testing by private employers remains controversial, despite laws like New Jersey’s that limit the practice.
Supporters argue carefully administered tests can verify truthfulness and prevent losses in theft cases. But critics contend polygraphs are unreliable pseudoscience that should not be a factor in employment decisions.
Currently, 28 states have laws restricting or limiting private employer polygraph testing. Federal law also limits testing for most private employees.
But a number of states have no regulations, leaving more room for employer-mandated testing. Some industries, like security and pharmaceuticals, make greater use of polygraph screening.
Public sector employers generally have wider latitude to test employees in sensitive roles like law enforcement. But there has been a cultural move away from polygraph testing in recent decades.
Policy Considerations and Debate
The issue of employer lie detector tests raises a number of policy considerations:
Privacy vs. Security – Critics argue routine polygraph testing invades personal privacy. But supporters contend tests are needed to ensure security and prevent insider threats.
Employee Rights vs. Employer Interests – Laws aim to balance employee protections with legitimate needs of employers. But there are disagreements on where to draw the line.
Reliability Concerns – Many dispute the reliability and accuracy of polygraph testing. But proponents argue techniques have improved and can serve limited purposes if used responsibly.
Deterrence vs. Intrusion – Some say the possibility of testing deters misconduct. But others argue perceived intrusions outweigh unproven deterrence value.
Alternatives – Opponents argue polygraphs are outdated and there are better alternatives like monitoring, audits, and data analytics. But these may not provide the same perceived deterrence.
There are good-faith arguments on both sides of these issues. Lawmakers in New Jersey and other states have sought to strike a practical compromise. But the debate continues around the appropriate role of polygraph testing by private employers.
Conclusion
New Jersey has long prohibited most private sector employers from mandating polygraph tests. The law aims to protect employees from coercion and abuse. But it also recognizes limited validity in investigations of economic crimes.
While critics argue the law does not go far enough, it remains among the more restrictive in the U.S. But there are still debates around employer rights, employee protections, and the reliability of polygraph testing technology.
These issues will likely continue to be balanced through policies like New Jersey 2C:40A-1. But as technology and workplace norms evolve, there may be a need to revisit the law’s narrow allowances for this controversial practice.