Employee Polygraph Protection Act

All examinations involving employee theft are strictly adhered to the Employee Polygraph Protection Act of 1988. The Department of Labor administers and enforces the Employee Polygraph Protection Act of 1988  (the Act) through the Wage and Hour Division of the Employment Standards Administration. The Act generally prevents employers engaged in interstate commerce from using "lie detector" tests (polygraph exams) either for pre-employment screening or during the course of employment, with certain exemptions. Under the Act, the Secretary of Labor is directed to distribute a notice of the Act's protections, to issue rules and regulations, and to enforce the provisions of the Act. The Act empowers the Secretary of Labor to bring injunctive actions in U.S. district courts to restrain violations and to assess civil money penalties up to $10,000 against employers who violate any provision of the Act. Employers are required to post notices summarizing the protections of the Act in their places of work. For complete information on the Employee Polygraph Protection Act of 1988, visit the U.S. Department of Labor’s website.  

Definitions

A lie detector includes a polygraph, deceptograph, voice stress analyzer, psychological stress evaluator or similar device (whether mechanical or electrical) used to render a diagnostic opinion as to the honesty or dishonesty of an individual.

A polygraph means an instrument that records continuously, visually, permanently, and simultaneously changes in cardiovascular, respiratory and electrodermal patterns as minimum instrumentation standards and is used to render a diagnostic opinion as to the honesty or dishonesty of as individual.

Prohibitions

An employer shall not:

-require, request, suggest, or cause an employee or prospective employee to take or submit to any lie detector test

-use, accept, refer to, or inquire about the results of any lie detector test of an employee or prospective employee

-discharge, discipline, discriminate against, deny employment or promotion, or threaten to take any such action against an employee or prospective employee for refusal to take a test, on the basis of the results of a test, for filing a complaint, for testifying in any proceeding, or for exercising any rights afforded by the Act.

Exemptions

Federal, state, and local governments are excluded. In addition, "lie detector" tests (polygraph exams) administered by the federal government to employees of federal contractors engaged in national security intelligence or counterintelligence functions are exempt. The Act also includes limited exemptions where polygraph tests (but no other lie detector tests) may be administered in the private sector, subject to certain restrictions:

-to employees who are reasonably suspected of involvement in a workplace incident that results in economic loss to the employer and who had access to the property that is the subject of an investigation; AND

-to prospective employees of armored car, security alarm, and security guard firms who protect facilities, materials, or operations affecting health or safety, national security, or currency and other like instruments; AND

-to prospective employees of pharmaceutical and other firms authorized to manufacture, distribute, or dispense controlled substances who will have direct access to such controlled substances, as well as current employee who had access to persons or property that are the subject of an ongoing investigation.

Employee/prospective employee rights

An employee or prospective employee must be given a written notice explaining the employee's or prospective employee's rights and the limitations imposed, such as prohibited areas of questioning and restriction on the use of test results. Among other rights, an employee or prospective employee may refuse to take a test, terminate a test at any time, or decline to take a test if they suffer from a medical condition. The results of a test alone cannot be disclosed to anyone other than the employer or employee/prospective employee without their consent or, pursuant to court order, to a court, government agency, arbitrator or mediator.

Under the exemption for ongoing investigations of work place incidents involving economic loss, a written or verbal statement must be provided to the employee before the polygraph exam that explains the specific incident or activity being investigated and the basis for the employer's reasonable suspicion that the employee was involved in such incident or activity. Where polygraph examinations are permitted under the Act, they are subject to strict standards concerning the conduct of the exam, including the pre-test, testing, and post-test phases of the examination. Civil actions may be brought by an employee or prospective employee in Federal or State court against employers who violate the Act for legal or equitable relief, such as employment reinstatement, promotion, and payment of lost wages and benefits. 

Checklist for the Employer

1.  The incident must be an ongoing, specific investigation.

2.  It must be an identifiable economic loss to the employer.

3.  Obtain a copy of the Employer Polygraph Protection Act of 1988.

4.  Provide the employee with a written statement that includes: a) identification of the company and location of employee; b) description of the loss or activity under investigation; c) location of the loss; d) specific amount of the loss; e) type of economic loss; f) how the employee had access to the loss but note that access alone is not sufficient grounds for polygraph testing; and g) what kind of reasonable suspicion there is to suspect the employee of being involved in the loss.

5.  The statement provided to the employee MUST be signed by someone other than the polygraph examiner who is authorized to legally bind the employee, and MUST be retained by the employer for at least 3 years.

6.  Read the Notice to Examinee to the employee, which should be signed, timed, dated and witnessed.

7.  Provide the employee with 48 hours advanced notice (not counting weekends or holidays) to the date and time of the scheduled polygraph test.

8.  Provide the employee with written notice of the date, time, and location of the polygraph test including written directions if the test is to be conducted at a location other than at the place of employment.

9.  Maintain a statement of adverse actions taken against the employee following a polygraph test.

10.  Conduct an additional interview of the employee before any adverse action following a polygraph test.

11.  Maintain records of ALL of the above for a minimum of 3 years.

12.  Employees may not waive their rights.

13.  Police and investigators are not exempt and must comply if they are conducting an employment related polygraph test (e.g., when conducting a polygraph exam on an internal theft for a missing deposit). Information about a polygraph provided to the employer by a police officer or investigator is prohibited under the Act since employers are not allowed to use, accept, or inquire about the results.

14.  There is a $10,000 penalty for EACH violation of the law.

15.  Check out the credentials of the polygraph examiner that you use and verify that the examiner meets EPPA requirements. Never hesitate to ask for written proof of licensing, liability insurance, etc.

16.  Use your company letterhead on all forms you provide to the employee. Have your corporate attorney review your actions to assure your compliance of EPPA.