Do you own a business? Do you need to implement a polygraph policy in the workplace? You may be an employee researching more on polygraphs, and you want to know more about the legality of your boss sending you for a polygraph exam.
This post discusses when employers can use polygraph policies in the workplace and the specifics surrounding the legislation involved with its fair use.
What Is the Employee Polygraph Protection Act of 1988?
The “Employee Polygraph Protection Act of 1988” (EPPA) is legislation signed into power by Ronald Reagan in the final month of his second term in office. The EPPA prevents employers from using workplace polygraph policies in employment practices, such as pre-employment screening and random or specific cases.
Employers who want to implement a workplace polygraph policy must comply with the EPPA, or they risk violating the Act. The purpose of the EPPA is to stop employers from unjustly using polygraph exams to remove undesirable people from their organization.
For example, an employer might use a polygraph to keep people of a certain ethnicity out of their organization. This problem happened in the past, and the EPPA stopped it.
When Can a Private-Sector Employer Implement a Polygraph Policy?
A private-sector employer can implement a polygraph policy in the workplace under special circumstances. They may not use polygraphs in pre-employment screening or in random testing. However, there are exemptions in the EPPA allowing employers to use polygraph policies in the event of the following.
- Experiencing a severe economic loss, such as inventory theft.
- To uncover cases of fraud and embezzlement.
- In sexual harassment cases.
- In instances of suspected drug abuse or distribution by employees in the workplace.
Are Any Industries Exempt from the EPPA?
Some industries are exempt from the EPPA. They don’t have to comply with all the aspects of the Act due to the nature of their business. For example, nuclear power operators don’t have to abide by the EPPA concerning pre-employment, random, or specific polygraph testing. This is because these individuals work with proprietary technology in the public interest.
If a terrorist were to gain access to these facilities, they might use the opportunity to create a nuclear disaster. So, by implementing pre-employment polygraph screening, the employer can keep these bad actors out of their organization, preventing loss of life and a potential disaster that could affect millions of Americans.
These exemptions exist in companies involved in security, armored vehicle transport and asset movement, pharmaceutical manufacturing and distribution, and other sensitive industries where hiring candidates may present a threat to the company or the community.
Public-sector agencies, such as those involved in the Justice Department (US Attorney Office), national security (FBI/CIA), and others, do not have to comply with the EPPA.
How Do Employers Roll Out Employee Polygraph Policies?
If an employer decides to implement a workplace polygraph policy, they must comply with the EPPA when doing so. They cannot use the polygraph for pre-employment screening or random employee testing unless their company falls into one of the exempted categories listed by the EPPA.
However, suppose the employer is exempted or has a valid reason for implementing a polygraph policy, such as those discussed earlier. In that case, they have a right to do so. The employer starts by hiring the services of a qualified corporate attorney to assist them with handling the legal matters involved with structuring the policy.
The attorney guides the employer through the process and works with the polygraph examiner to structure the policy. The attorney is also available to protect the employer if they violate the Act and the Labor Department launches an investigation into the matter.
The employer will hire an independent polygraph company to help them structure the polygraph policy and test their employees. The examiner works closely with the attorney to plan the procedure, formulate the questions, and roll out the notification of the polygraph policy to the employees.
The examiner has a duty to the client, the employer, and the examinee (employee). They must act with the interests of both parties in mind and may not show bias toward either side. The examiner assists the employer and the employees with understanding the aspects of the EPPA involved in the test and explains to the employee their rights involved with taking the polygraph exam.
Are There Any Limitations on Employee Polygraph Exams?
An employer has certain limitations placed on instituting a workplace polygraph policy. For instance, there are limitations on when and to whom they can issue a test. One of the primary areas where the employer must adhere to constraints is in the exam format. Specifically, the limitations involve what the examiner can ask you during the lie detector test.
Before the examiner can administer the lie detector exam, your employer must read aloud the specifics of the polygraph policy and EPPA to you. They’ll also have to read aloud the questions they plan to ask you and get you to sign and date a document including the following aspects relating to the lie detector test and its execution.
- The employer must provide a list of topics the examiner may not ask you about during the polygraph.
- These topics include questions regarding your sexual preference, religious beliefs, racial matters, political affiliation, and lawful activities involving you with labor organizations.
- The examiner and employer must inform you of your right to refuse the polygraph exam.
- The employer must explain they cannot ask you to take a polygraph as a condition of employment.
- The employer must explain how they’ll use the test results.
- The employer must explain your legal rights regarding the test and your recourse if the employer or examiner doesn’t comply with the EPPA.
The examiner and employer have no authority over you. A private-sector polygraph is not the same as one in the public sector, and your employer cannot use it as an intimidation tactic or bully you into taking the test. During the polygraph exam, you have the right to ask the examiner to stop the test at any time, and they must comply with your request.
The examiner may not be rude or degrading to you in any manner. They must treat you with civil respect at all times. The examiner may not intimidate you during the test, and they cannot force you to reply to any of their questions using threats.
After you complete the test, the examiner will write a report on their findings and send it to your employer around two to three days later. Your employer must give you your results, but they cannot share them with anyone but you or management directly involved with your role in the company.
The employer may share the results with law enforcement if the nature of the test involves a possible criminal investigation and the exam reveals your potential involvement in it. The employer may disclose the test results in the event of receiving a court order.
The employer may not, under any circumstances, share older polygraph test results with prospective employers if they call your company asking for a reference.
Are Polygraph Results Accurate? Is there a Chance for a False Positive?
The modern polygraph is a highly accurate device. Before polygraph software and computerized systems were introduced in the 1990s, the “Keeler” polygraph was the benchmark standard for these devices. However, since it was an electromechanical device, it didn’t have the same accuracy as the modern polygraph. As a result, the machine had an accuracy rate of between 60% to 70%.
However, the introduction of algorithms and polygraph software improved test accuracy tremendously. Computer-driven polygraph machines used in the 2020s have accuracy ratings ranging between 87% to 97%. The leading software manufacturers, such as Stoelting, Axciton Systems, and Lafayette Instruments, have software that’s up to 97% accurate at detecting deception in examinees.
So, why are these systems not 100% accurate? Well, the reality is that there is still a margin of error. Polygraph machines cannot pick up deception in pathological liars. These individuals believe their lies, and they don’t experience the feeling of guilt and shame when lying.
As a result, pathological liars don’t experience the activation of the “fight-or-flight” (FoF) response initiated by the sympathetic nervous system when they lie. The examiner looks for the FoF during the lie detector test to determine if the examinee is answering deceptively.
Can My Boss Fire Me for Failing a Lie Detector Test?
Your employer cannot fire you if you fail the polygraph exam. They also may not reprimand you, remove your recent promotion or use the result to stop an imminent promotion. The employer may not use the test results to attempt to force you out of the company, and they can’t reduce your workplace experience in an attempt to get you to leave of your own accord.
These actions result in a direct violation of the EPPA, and you have a right to take legal recourse against the employer for their actions. Essentially, there is no action the employer can take against you for failing a polygraph. However, if your failure implicates you in a possible crime against the company, the employer can share their suspicions and your polygraph results with the police.
What Do I Do If I Think My Employer Violated the EPPA?
If you think your employer violated your rights under the EPPA, you can take formal legal action against them. The US Department of Labor enforces the Employee Polygraph Protection Act, and you can contact the Labor Department’s Wage and Hour Division for free advice on how to proceed.
If you feel your employer violated the EPPA, the best course of action is to speak with an attorney who can navigate the filing process with the US Labor Department on your behalf. There’s no paperwork involved with filing with the Labor Department, but an attorney can give you more advice if you can’t get ahold of a Wage and Hour Division investigator.
An attorney can also safeguard you from further employer harassment after filing with the Department. You’ll write a letter to your local Wage and Hour Division office to file a complaint. Your letter must include the name and address of your employer’s premises, your contact details, and the date the incident occurred. Remember to keep a copy of the letter for your records.
The Labor Department investigates the matter, and if they find your employer violated the Act, they are subject to a $10,000 fine for each infringement. The Department will also issue an injunction to your employer, ordering them to reinstate you if they fire you for failing the polygraph test.
The employer is also liable for any lost wages during the dismissal period. If the Labor Department’s investigation is unsatisfactory, you can use your attorney to file a lawsuit against your employer. If that’s the case, you must file the lawsuit within three years of the violation date. If you win your case, the court will usually order your employer to pay your legal fees and other costs involved with proceeding with your case.
What are the State Laws on Polygraph Exams?
The laws regarding employers’ use of polygraph exams vary from state to state. While all employees have protection under the EPPA, some states institute additional requirements for employers when designing and rolling out polygraph policies.
Some states may forbid employers from using polygraph policies at all. Just mentioning their intention to polygraph them or requesting to do so can have severe legal consequences for the firm. State coverage may have a broader reach; while Federal laws don’t apply to local government and state employees, many state statutes do.
It’s important to note that several state laws provide an employee who voluntarily submits to their employer’s request to take a polygraph exam may do so if they wish. However, these laws have safeguards for employees, requiring the employer to administer the lie detector test under approved, supervised conditions.
These employee polygraph exams must clearly stipulate how the employer intends to use the test results.