Pre-employment polygraph exams are a tool used by certain sectors to ensure the integrity and reliability of potential employees, especially in roles where security and trust are paramount. Industries such as security companies, pharmaceutical sales or transportation, power generating companies, law enforcement, and other government agencies often resort to these measures to safeguard their operations. However, the use of such exams is tightly regulated under the Employee Polygraph Protection Act of 1988 (EPPA) in the United States, with specific criteria that must be met to ensure legal compliance and to avoid severe penalties.
Understanding the Employee Polygraph Protection Act of 1988
The EPPA sets forth clear guidelines for when and how an employer can request an employee or a job candidate to undergo a polygraph test. It’s crucial for employers to adhere to these guidelines meticulously to ensure the legality of the polygraph examination process.
Key Considerations for Legally Conducting Polygraph Exams
- Employer Eligibility: Not all employers are permitted to request polygraph exams. The law specifies that only certain employers, like those in the sectors mentioned above, may consider polygraph testing, and even then, under strict conditions.
- Specific Loss Requirement: An employer must have suffered a specific and identifiable economic loss, such as theft or embezzlement, where the employee in question had access or responsibility.
- Employee Access and Suspicion: The employee to be tested must have had access to the property or information lost and must be reasonably suspected of involvement. This suspicion must be based on tangible evidence rather than mere speculation.
- State Law Compliance: Employers must also ensure that their request for a polygraph test does not violate state laws, which may have stricter regulations than federal laws.
The Process of Requesting a Polygraph Exam
- Establishing a Basis: Before scheduling a polygraph exam, an employer must identify a specific loss and have reasonable suspicion pointing towards the involvement of the employee(s) in question.
- Written Request: The employer must formally request the employee to take the exam in writing, clarifying that the test is voluntary and detailing the incident under investigation.
- Scheduling the Exam: Upon meeting all preliminary requirements, the employer can then proceed to schedule the polygraph exam with a qualified examiner.
- Employee Rights: Employees must be informed that they cannot be forced to take the exam, and refusal to participate cannot be the sole reason for adverse employment actions such as termination or demotion.
Compliance and Consequences
Employers who wish to utilize polygraph testing must be diligent in their adherence to the EPPA’s provisions. The act mandates that employers retain all related documentation for a minimum of three years post-exam. Violating the EPPA can result in significant legal repercussions, including fines and compensatory damages to affected employees.
For industries where trust and security are non-negotiable, pre-employment polygraph exams can be a valuable part of the vetting process. However, it’s paramount that these exams are conducted within the legal framework provided by the EPPA to protect both the employer and the employee’s rights. Employers uncertain about their compliance should consult legal expertise to navigate the complexities of the EPPA and ensure that their pre-employment screening practices are both effective and lawful.
