By Marisa Taylor, McClatchy DC
The Drug Enforcement Administration has agreed to pay 14 contractors $500,000 to settle a lawsuit that accuses the agency of illegally requiring them to undergo highly intrusive lie detector tests to keep their jobs as translators.
The settlement appears to be the first time that a federal government agency has settled allegations involving contractors’ lie detector tests since a 1988 law banned the use of polygraph screening for most private employees, said a lawyer for the group.
The 14 contract employees translated Spanish conversations collected during court-authorized wiretapping of the DEA’s criminal suspects. They said they were barred from working after they failed or refused polygraphs.
The DEA did not acknowledge any wrongdoing, but it agreed to re-screen the plaintiffs without weighing lie detector results. The agency also promised to delete references to the polygraphs from government records.
“This will serve as a message to other government agencies,” said Gene Iredale, the San Diego attorney who sued the DEA.
“The people who were involved in this case work hard and are of impeccable character. But because of a squiggle on a piece of paper and the poor administration of these polygraphs, they were humiliated and unfairly deprived of their employment.”
More than 20 federal agencies, including the DEA, are permitted to polygraph job applicants and employees to determine whether they’ve lied about their backgrounds, McClatchy has reported. About 73,000 people a year undergo polygraphs to obtain federal security clearances. The U.S. government estimates that almost 5 million people have security clearances, although it doesn’t say how many have been polygraphed.
Federal agencies have become more aggressive in polygraph-testing employees and applicants, not only since the Sept. 11 attacks but also since leaks to the media by former National Security Agency contractor Edward Snowden.
Yet most federal employees and contractors are barred from suing over security clearance matters in court. They’re forced instead to seek recourse directly from the agencies that denied them jobs or security clearances based on the results of lie detector tests.
In this case, however, the San Diego-area translators asserted that the DEA wasn’t permitted to polygraph them as employees of the agency’s contractor. The translators also sued their company, Metropolitan Interpreters and Translators Inc.
According to public documents, the company separately agreed to pay more than $196,000 to one plaintiff and $93,000 to another and agreed to rehire them contingent on the DEA’s re-screening. Three other settlements are confidential. The translators’ suit against Metropolitan Interpreters and Translators Inc. is still proceeding in court for the other nine plaintiffs.
A 1988 law banned most private employers from polygraphing their workers because of scientific questions about the technique’s reliability and accounts of employer abuses.
The law still allowed the federal government to polygraph its employees and applicants. It also lists certain intelligence and law enforcement agencies as permitted to test their contractors. However, it does not list the DEA. The agency countered in court documents that it was permitted to polygraph contractors because the law does not explicitly ban it. Even so, U.S. District Judge Jeffrey Miller permitted Iredale to proceed with his lawsuit.
Before being polygraphed, the translators had undergone credit checks, screening interviews and criminal background checks. They did not have access to classified information, Iredale said.
In a sudden shift in January 2011, however, the DEA demanded that the company send the translators in for lie detector tests. Iredale said the agency instituted the practice after discovering that a translator was related to a criminal suspect. As a result, it polygraphed about 100 translators from the company, and 27 of them were told they’d failed.
The 14 plaintiffs in the lawsuit didn’t know the criminal suspect, nor were they were implicated in any criminal conduct, Iredale said.
The DEA polygraphers, however, asked the translators very personal and even alarming questions about their lives, including about their sexual practices and crimes such as bestiality, court documents said. Twelve of the plaintiffs were told they’d failed their tests and two refused to be polygraphed. The company then told them they weren’t permitted to work for the DEA and were laid off as a result.
Immigration and Customs Enforcement also barred eight of the translators from working on its criminal cases, but it agreed to reassess their employment as part of the settlement.
Lawyers for the DEA, Immigration and Customs Enforcement and Metropolitan Interpreters and Translators Inc. didn’t immediately return calls requesting comment.
Iredale said the DEA hadn’t tape-recorded the interrogations, even though it and other agencies generally do.
The DEA also used a lie detector, known as the LX4000, that government officials for other agencies told McClatchy they’d determined had inconsistent sweat measurements.
The manufacturer, Lafayette Instrument Co. Inc., described the phenomenon as “occasional” and “minor,” but said it had fixed it anyway.
The problems with the LX4000 might have falsely triggered failures on the translators’ tests, Iredale said. In one instance, a DEA polygrapher asked one of the plaintiffs to hold a hot plastic water bottle before he hooked her up to the lie detector because he was concerned that her hands were too cold for a sweat measurement.
“If you hold a hot water bottle, you’re going to start to sweat,” Iredale said. “Of course that could trigger a false reading.”
Before suing, two of the plaintiffs wrote to the company to question the legality of the lie detector tests but their concerns were ignored, Iredale said.
The company bills itself as the largest U.S. provider of translation services to private companies, law enforcement and government agencies. It has offices in New York, Miami, Los Angeles, San Diego, Atlanta and Washington.
All federal polygraphers are warned against engaging in unethical and discriminatory behavior during training at a federal academy. The academy also routinely inspects polygraph programs to ensure that their practices are in line with federal standards.
But critics say the inspections are cursory and often miss major problems. The academy inspected the National Reconnaissance Office, yet it didn’t appear to pick up on a major internal controversy. In 2012, McClatchy detailed allegations by current and former polygraphers at the spy satellite agency that they were pushed to collect intensely personal information in violation of Pentagon rules and were rewarded with bonuses for doing so.
One former NRO polygrapher said he’d been pressured to interrogate a woman about her molestation as a child. In other instances, the agency failed to inform law enforcement agencies about confessions to crimes, including child abuse, according to a report last month by the inspector general for the intelligence community.