If you’re an employer, you might think you have the right to polygraph new employees or your staff. However, that’s not always the case. If you’re an employee, you need to know you’re right surrounding what your employer can ask of you concerning polygraph exams.
Administering or receiving polygraph exams is serious business. The outcome of a lie detector test can change a person’s life forever, especially if it’s an adverse result. So, employers must follow best practices when implementing polygraph policies in the workplace.
Employees must understand their rights and when they can refuse a polygraph or when they have to comply with the employer’s policy. Understanding the correct use of polygraph technology in the workplace ensures a safe, productive, and compliant workforce and a favorable employee experience.
The Employee Polygraph Protection Act of 1988 forms the basis and guidelines for implementing polygraph exams at work. Whether hiring new candidates or testing their current staff, they need to comply with this legislation.
Failing to adhere to the guidelines in The Employee Polygraph Protection Act (EPPA) can have severe penalties from the employer, resulting in huge financial damages that could ruin the company. This post unpacks the specifics of the EPPA and how it regulates polygraph policies in the workplace.
What Is the Employee Polygraph Protection Act of 1988?
On June 27, then-President, Ronald Reagan signed into power The Employee Polygraph Protection Act of 1988. The Act established the guidelines for administering polygraph exams in the workplace. Until this piece of legislation was signed into law, the use of polygraph exams had no restrictions or limitations on their use in the workplace.
As a result of this “wild west” approach to the use of polygraph technology, employers used it in the hiring and firing process in many unjust ways. For instance, if the employer did not like an employee’s personality, they could use a polygraph to fire them, removing them from the workforce.
Similarly, the employer could use the polygraph in the pre-employment screening process to weed out candidates they didn’t feel were a good fit. These practices were discriminatory, causing many people to lose jobs that didn’t deserve to do so.
Also, people who were unfairly discriminated against and fired or not hired would have a mark against their name after being fired for failing a polygraph, tarnishing their reputation in their industry. The EPPA introduced restrictions on using polygraph technology in the workplace, intending to end these discriminatory practices.
The Department of Labor enforces the EPPA, governing the use of polygraphs in the workplace. Typically, it’s unlawful for employers to polygraph their employees or use it in pre-employment screening.
However, there are exemptions to these basic rules, depending on circumstances and the industry or sector in question. The EPPA also covers similar devices, such as Computer Voice Stress Analyzer (CVSA) tech, “deceptographs,” or other mechanical devices used in the diagnosis and evaluation of deceptive or dishonest behavior in the workplace.
Who Does the Employee Polygraph Protection Act Affect?
The Employee Polygraph Protection Act came into law to protect employees in the private sector. Large organizations in the public sector don’t have to comply with the provisions of the Act. Local, state, and federal government agencies don’t have to comply with the legislation due to the sensitivity of the information handled by the employees.
These exemptions apply to police departments, prison systems, school districts, and other institutions involved in national security. The employees of these organizations are trusted with sensitive information or the humane care of others. Therefore, the Act doesn’t cover them for pre-employment or employee screening.
Employer Exemptions to the Employee Polygraph Protection Act of 1988
Employers instituting a polygraph policy with their staff have restrictions on its use in the workplace, as stipulated by the EPPA. However, this doesn’t mean that employers in the private sector can’t use polygraphs. There are several exemptions for its use in the workplace.
For instance, the primary goal of the EPPA is to restrict the use of polygraph technology in the pre-employment screening process and for examining employees. However, companies involved in manufacturing and distributing pharmaceuticals may implement a polygraph policy for pre-employment screening and for employees on the job.
It makes sense why the Act would not apply to this kind of company. If an addict were to get a job in the company, they might use their position to steal drugs for their habit or sell them to dealers that put the drugs on the street.
The exemptions on using a polygraph policy in the workplace apply to many other private sector organizations with similar functions. The Act doesn’t apply to companies involved in hiring armored car personnel, security personnel, power plant employees, nuclear facility workers, toxic waste disposal, or other jobs with a significant impact on the safety or health of communities across the country.
Organizations in the private sector, like the NSA, FBI, CIA, DOD, and Border Patrol, all use polygraphs to pre-screen employees and those on the job. These organizations handle state secrets and security, making honesty and trustworthiness vital to all employees in this sector.
What Criteria Must an Employer Meet in Implementing Polygraph Testing?
An employer may also institute polygraph testing in the private sector under certain conditions, making them exempt from coverage of the Act. For instance, if an employer experiences a theft and suspects employee involvement, they have a right to polygraph the staff they assume might be involved with it.
This rule also applies to financial companies where employee embezzlement may be suspected. Employers can also implement a polygraph policy in situations where a staff member accuses another of sexual misconduct or if they suspect drug abuse in the workplace.
Employers should review the following checklist before implementing a polygraph policy in the workplace.
Employer Polygraph Checklist
- The polygraph must occur as part of an ongoing investigation into a crime, such as theft.
- The polygraph may be implemented if the company faces economic loss.
- The employer must understand the rules of the Employer Polygraph Protection Act.
- The employer must serve the employee with a document explaining the reasons for the polygraph.
- This document must be signed by an individual legally authorized to represent the employee. This person must be employed by the employer for at least three years and may not be the examiner.
- The party must read aloud the Notice to Examinee to the employee. The document must be signed, witnessed, and dated.
- The employer must serve the employee a minimum notice period of 48 hours before the stated exam time.
- The employer must provide the employee with documented notice of the time, date, and location of the polygraph examination and directions to the exam location.
- The employer must hold a statement of adverse actions against the employee after the polygraph exam.
- The employer must conduct additional interviews with the employee before taking adverse action after the polygraph exam.
- The employer must retain all related documents to the polygraph exam for a minimum of three years.
- Employees cannot waive their rights against refusing to take the polygraph or other civil liberties.
- Law enforcement and investigators cannot share the polygraph results.
- Violation of the EPPA results in a $10,000 penalty for each employee.
- The employer must verify the credentials of the polygraph examiner, including documentation of licensing, liability insurance, etc.
- The employer must use a company letterhead on all forms provided to employees.
- A corporate attorney must review actions and assure compliance with the EPPA.
Polygraph Examiner Checklist
The polygraph examiner also has a set of duties to the employer and employee. They must ensure they comply with these duties or risk severe penalties.
- The examiner must provide the employer with photocopies of the EPPA guidelines.
- The examiner cannot assist employers in determining the employees to be tested.
- The examiner must ensure a signed statement of advance notice is given to the employee.
- The examiner must give the employee written clarification of the polygraph exam and its procedures. The employee must sign and date the document.
- The examiner must read aloud the EPPA and answer all questions the employee may have regarding the polygraph exam. They must ensure the employee signs and dates this document.
- The examiner must advise the employee of the use of one-way mirrors, taping, and video recording of the exam.
- The examiner must have a minimum of $50,000 in liability coverage.
- The examiner may conduct a maximum of five exams per day.
- The examiner may not conduct exams with time limits under 90 minutes.
- The examiner must give the employee the exam questions in writing.
- The examinee must write their answers and sign and date the question sheet.
- The examiner must be licensed to operate in the state where they carry out the exam.
- The examiner must log the organization’s name, the employee’s name, and the time and date of all polygraph exams conducted.
- The examiner must divulge the test results to the employee and give them the opportunity to explain their reactions to questions and reasons for failure where applicable.
- The examiner must provide their opinion of captive or non-deceptive behavior in writing.
- Results must not be based on the employee’s behavior but polygraph exam results.
- The examiner must provide relevant information about the purpose and intent of the exam to the employer.
- The examiner must keep copies of all related documents for a minimum of three years.
- The examiner must provide the employee a photocopy of all documents upon their request.
- The examiner must provide a photocopy of documents to the employer if the results are deceptive.
- The examiner must provide the Department of Labor with these copies within 72 hours at the request of the Secretary of the Department of Labor or an authorized person from the Department of Labor.
What are the Restrictions and Prohibitions on the Use of Polygraph Exams in the Workplace?
Employers may not request, suggest, or require employees or candidates to take a polygraph exam. Additionally, the employer cannot inquire about exam results.
Employers cannot threaten, promote, discriminate, or discipline employees if they refuse to take the exam. Similarly, the employer may not deny employment, discharge, or threaten any action against an employee or candidate.
Filing Complaints Against an Employer or Examiner
If an employee feels the employer has violated their right in terms of the EPPA, they must file a complaint within 45 days of taking the exam. The basis of the complaint must be in one of the following categories.
- National origin.
- Mental or physical disability.
Employees can file complaints with the EEO counselor for the employees’ or candidates’ agency. The candidate or employee can file a formal complaint within 15 days of receiving notice of their right to file a complaint if they cannot informally resolve it.
Under the Age Discrimination in Employment Act of 1967, complaints against federal departments or agencies must be filed with the director of equal employment opportunity, the head of an Equal Employment Opportunity Commission (EEOC) field office, another official, or the head of that agency.
Federal employees may skip this requirement by notifying the EEOC within 180 days of the date of discrimination, and wait 30 days before they file a lawsuit.
What are the Rights of the Candidate or Employee Undertaking a Polygraph?
Despite protection from the Act, many employees fear retaliation from their employer if they come forward about their rights or discrimination against them through polygraph policies in the workplace. The EEOC is cracking down on instances of this phenomenon.
Employer retaliation may vary from unlawful discharge or intimidation in the workplace. This intimidation may cause an employee to quit their position due to a reduced quality of the employee experience to intolerable levels.
If the employee proves these charges, they are entitled to punitive and compensatory damages against their employer. The Equal Employment Opportunity Commission (EEOC) guidance has a zero-tolerance approach to handling instances of employer retaliation.
The EEOC uses a broad interpretation of this type of discrimination. Since 2009, retaliation charges displaced instances of racial discrimination in these cases as the leading cause for employees filing against their employer. Now, over 40% of private-sector complaints involve retaliation claims. This figure is double the previous guidance issued by the EEOC in 1998.