Alaska Employment Law

Both federal and Alaska law govern an employer’s use of lie detector (polygraph) tests.  The federal law specifically permits a more restrictive state law.  29 USC § 2009.  Alaska does have a polygraph law, and one that, in fact, offers more protection to  employees than does the federal law.

The federal Employee Polygraph Protection Act (EPPA) bars private sector employers from requiring, requesting, suggesting, or causing any applicant or employee to take or submit to a lie detector test.  29 USC § 2002(2).  There are several exceptions.  For instance,  EPPA permits an employer to insist upon a lie detector test during certain ongoing investigations into employee theft, so long as the employer 1) has good reason to suspect the particular employee, and 2) provides the employee with an itemization of the basis for the employer’s “reasonable suspicion,” before the test is administered.  29 USC § 2006(d). 

An aggrieved applicant or employee may enforce EPPA through a private civil action, and, if successful, recover actual back and front pay, fringe benefits, emotional distress damages, actual attorney fees, and costs.  29 USC § 2005.

The Alaska state law, found at AS 23.10.037, is substantially broader.  It bars the same kind of conduct as does the EPPA.  The state law provides:

A person either personally or through an agent or representative may not request or suggest to an employee of the person or to an applicant for employment by the person or require as a condition of employment that the employee or applicant submit to an examination in which a polygraph or other lie-detecting device is used.

AS 23.10.037(a).  But the state law a) applies to governmental employers (except as to police officers) as well as to private employers, and b) does not contain an exemption for ongoing investigations. 

Thus, in Alaska, every employer (public or private) is barred from suggesting or requiring any employee (except a police officer) from taking a lie detector test, even if the employer has reasonable grounds to suspect the employee of theft.  The employer must rely on other evidence if it wishes to discipline the employee for misconduct.

The state law does not expressly permit private enforcement.  But it presumably states “explicit public policy” that an employee could enforce through a tort action, ala Kinzel v. Discovery Drilling, Inc., 93 P.3d 427 (Alaska 2004), and Reust v. Alaska Petroleum Contractors, Inc., 127 P.3d 807 (Alaska 2005).  Unlike EPPA, the state law would almost certainly not permit a successful employee to recover full attorney fees.