Author: Vladimir Alistarkhov
Every employer seeks to ensure their interests by all available and legal means, including the issues addressed in the employment of potential employees. Depending on the proposed vacancy, a potential employee undergoes certain test activities, which allow to reveal the fact of professional suitability of a candidate for the position. If an employee gets a job that involves working with money and other property that can be stolen, then the applicant’s good professional skills are not enough.
The employer wants to know not only about the job experience of the applicant for the position, but also how the applicant has manifested himself in previous jobs, whether the applicant has dark spots in the biography related to crime and other similar information. In usual ways, it is often difficult to identify negative information, and it is here that employers of psychophysiological examination help the employers, who by using the polygraph can provide presumptive data about certain events in the life of the applicant for the position.
However, if the legality of using a polygraph for psychophysiological examination in criminal proceedings is less doubtful, then employing a polygraph by an employer to conduct an examination of potential employees seems to be controversial if there are not sufficient legal grounds for this. In this connection, it is of practical interest to clarify questions about the legal regulation of measures related to the use of a polygraph in relation to applicants for a position.
Does the employer have a legal right to conduct a psychophysiological examination using a polygraph against a candidate for the position?
Can a candidate refuse to conduct an examination, and can this refusal serve as a basis for not accepting him to work?
Are the rights of the candidate for the position in connection with the examination: are they affected by the examination of human health?
Regulatory regulation of the procedure for conducting a psychophysiological examination of a candidate for a position.
Currently, a fairly large number of employers use the capabilities of specialized organizations to conduct a psychophysiological examination of a polygraph of candidates for work. The relationship between the employer and the organization that provides services for the examination using a polygraph, are built on a contractual basis.
Taking into account the fact that the employer’s use of the polygraph is not regulated by labor legislation, it is necessary to use other regulatory documents in the study of the questions raised, in which one way or another the possibility of psychophysiological examination is mentioned.
Indirectly, the possibility of using a polygraph is provided for by paragraph 14 of Art. 6 FZ № 144-FZ from
Additionally, the conduct of a psychophysiological examination is regulated by various internal instructions of the Federal Security Service and the Ministry of Internal Affairs.
These internal instructions provide for the procedure for conducting an examination or for potential law enforcement officers, which is probably justified considering the status of the authorities, or provide for a procedure for conducting an examination of criminal proceedings.
According to the instructions on the use of the polygraph, an examination by the employer can be carried out under certain conditions.
Projecting the requirements of the above instructions for labor relations, a company that conducts an examination using a polygraph on the instructions of the employer must obtain written consent from the person being examined before the examination.
Consent to a psychophysiological examination should, as a minimum, contain:
- an explanation of the right of the citizen to choose to consent to the examination or refuse the examination;
- the list of questions on which psycho-physiological examination will be conducted;
- clarification of the right of a citizen at any time to refuse the examination;
- the employer’s obligation to use the results of the examination only for the purpose of considering the possibility of hiring a candidate for the job.
Taking into account the requirements of Art. 64 of the Labor Code of the Russian Federation, it can be concluded that questions on his gender, race, skin color, nationality, language, origin, attitude to religion, membership in public associations cannot be included in the list of issues during a psychophysiological examination of a candidate for a position. and other issues that are not related to the candidate’s business qualities.
It also seems logical to ban screening of pregnant women and minor children with a polygraph (although, according to law enforcement instructions, age limits are 14 years), as well as people with mental illness and mental exhaustion, cardiovascular diseases or respiratory diseases. Alcoholic or narcotic intoxication is also a contraindication for examination.
Refusal of a candidate for the position to undergo a psycho-physiological examination
If a candidate for a job has the right of choice – to undergo a psychophysiological examination or not to pass it, then, accordingly, the candidate’s refusal to work cannot be the basis for an employer’s refusal to hire an employee.
If a candidate for a job suspects that the employer is refusing to accept him for work due to the refusal to undergo an examination on a polygraph, the candidate on the basis of art. 64 of the Labor Code of the Russian Federation has the right to require a written waiver.
Failure to provide a written refusal may be appealed by the candidate in court. For an unreasonable refusal to accept a candidate for the position, the employer may bear administrative responsibility in accordance with Art.
At the same time, in practice, an employer, having several candidates for the position, in case of one of them refusing to pass the examination, can always refer to the fact that the refused candidate simply yielded to other candidates in business skills. To prove after this that they did not take the job due to the failure to pass the examination, the candidate has almost no real opportunity.
Disputes about the impact of psychophysiological examination on the physical and mental health of the respondent.
Judging by the existing regulations on the use of the polygraph, the examination itself is not harmful to health. Also, the opinion of polygraph examiners shows that there is no harm to health, but it seems that this is one side of the coin.
On the other hand, many practicing lawyers, personnel officers and other specialists note that, even if the candidate for the job does not have any negativity behind him, going through a psychophysiological examination causes him extreme emotional stress that persists throughout the examination procedure. By the way, we must remember that one of the contraindications to the examination is the health problems of the candidate for the job, that is, the examination affects not only the psyche, but also the physical health of the person.
Opinions of polygraph experts are mostly prejudiced from the point of view that this is their “bread”. In fact, candidates for work or already workers are covered by “cold sweat” even before the examination itself — such is the essence of almost any person. Moreover, after passing the examination, candidates for work leave psychologists as “squeezed like estuaries” from experts, and only medical workers can determine their state of health after examination.
According to some job seekers and workers who had to undergo examination with the help of a polygraph, this procedure was unpleasant and nervous, both before passing the examination and after passing it. The effects that took place were manifested in tension, sleep deterioration, etc.
The thesis that before going through a psychophysiological examination a candidate for a job must be sure of his well-being and health does not stand up to criticism either, since a person cannot know whether he is currently suffering from cardiovascular or respiratory diseases. – this can only install a doctor.
Thus, the candidate for the job, saying that he is healthy, in fact, does not speak about anything, and it is hardly possible in connection with the candidate’s words about his good health to relieve the employer or polygraph examiners if the person stops heart during the examination. Moreover, in the event of damage to human health, it is necessary to consider the relevant issues in the context of the possible criminal liability of the persons who conducted the examination and ordered it.
Appeal of a candidate for a position in court in connection with violation of his rights and health
As mentioned above, a candidate for a job has the right to go to court in the event of an unreasonable refusal to accept him for a job, including in connection with the failure to pass the examination. Moreover, according to some experts, the duty to pass an examination before hiring may be recognized by the court as illegal, but at present there is no such judicial practice.
The main thing is still the question of whether a candidate for a job after passing an examination using a polygraph can go to court to recover money from the employer for damage to health or to recover damage for moral damage.
The candidate has such an inalienable right, but the question whether he can prove something in court remains open, since, again, there is no relevant judicial practice. Although it seems perfectly reasonable to claim damages from the employer for using a polygraph, if the relevant medical report is attached to the statement of claim, it also states in the lawsuit what the moral harm was done to the candidate.
In Western countries, including the United States, in contrast to Russia, workers have long ago "saddled the fad" regarding the sending of claims to the employer for the unlawful use of a polygraph. It should be noted that the use of the polygraph is quite widespread in Western countries, but it is strictly regulated by law. Due to the fact that the use of the polygraph by law has been regulated, it is easier for workers to navigate where the employer has committed illegal actions against him.
The main conclusions on the material
- The use of a polygraph when applying for a job does not make it possible to obtain an absolutely reliable result on the questions asked. There is always the possibility that the polygraph examiner was mistaken, and the candidate, according to the results of the examination, appeared in the eyes of the employer to be not who he really is.
- In general, it can be argued that the employer’s use of psycho-physiological expertise in relation to a job candidate is not regulated by law. In this case, the principle of “that is not prohibited, it is allowed” works, and this principle is completely unacceptable when it comes to human rights.
- The use of a polygraph for candidates for the position is a voluntary event only in words. Everyone understands that in this case we are talking about the "voluntary-compulsory" actions of the employer, since, if the candidate refuses the examination, he will not see the work "like his ears."
- Due to the fact that the examination with the help of a polygraph is not regulated by legislation, the question arises – why?
It seems that the choice of the answer has to be done between the inability of our legislative bodies to work and the unwillingness of law enforcement agencies to legally resolve the issue of the use of a polygraph. It is possible that legislative initiatives on this issue are simply blocked.
Why law enforcement agencies may be against the settlement of this issue? Everything is very simple. A polygraph is a tool that is not particularly well known among wide circles of Russian citizens, and in this regard, the effectiveness of its use for the authorities to achieve their objectives is high.
And now let’s imagine for a moment that the issue of the use of a polygraph is legally regulated, and every Russian citizen will not only be able to figure out what a polygraph is, but also learn to hide the truth to some extent during the examination. The effectiveness of the polygraph, respectively, will be reduced.