The Employee Polygraph Protection Act of 1988 (EPPA) provides legislation surrounding the roll-out and execution of polygraph policies in private sector workplaces. It’s a complex law, with certain loopholes allowing employers to implement polygraph exams in specific situations.
However, the employer must comply with the law when instituting polygraph exams for their employees. Failing to adhere to the EPPA places the employer at risk of financial liability if the employee files a complaint against them for violating the terms of the Act.
There are specific reasons involved in the Act and in the policies of polygraph examination companies that may disqualify employees from taking a polygraph test. Depending on their nature, these disqualification criteria may benefit the employer or the employee.
This post unpacks why employees may be disqualified from participating in polygraph exams and the consequences of these criteria and decisions.
Why Would Employees Be Disqualified from Taking a Polygraph Exam?
Several criteria may disqualify employees from participating in a polygraph exam. They originate from both employer and employee requirements for the execution of the lie detector test in the workplace.
Let’s review these disqualification criteria from both angles.
Disqualifications Due to Employer & Examiner Incompetence
As mentioned, criteria disqualifying the employee from taking the polygraph exam come from both the employer and employee sides of the equation. The employer has specific duties to the employee that they must adhere to when notifying them of their intention to polygraph them.
If the employer or examiner doesn’t meet these obligations, it disqualifies the employee from participating in the lie detector test. Here are some of the disqualifying criteria that may cause such an issue.
Failing to Adhere to the EPPA
The “Employee Polygraph Protection Act of 1988” (EPPA) is legislation signed into power by Ronal Reagan during his administration of the United States. It covers a set of criteria private sector employers must meet in order to roll out a polygraph policy in the workplace.
The EPPA aims to prevent employers from misusing lie detector tests in the workplace to favor them during the employee hiring and firing processes. If the employer doesn’t adhere to the EPPA when planning and executing the polygraph policy, it disqualifies the employee’s need to participate in the exam and its results.
If the employer doesn’t comply with all the terms mentioned in the EPPA, they violate the Act. As a result, they disqualify the test results and place the organization at risk of sustaining financial liability at the hands of the US Labor Department, which enforces the law.
Private Sector Applications Outside the EPPA
The EPPA states the terms and conditions where the employer may lawfully use a polygraph policy in the hiring and firing process. The EPPA strictly forbids employers from using polygraphs in the pre-employment screening when interviewing candidates.
However, there are some exceptions to the EPPA in these processes. For instance, if the employer’s business involves pharmaceutical manufacturing or distribution, high-value asset transport or safeguarding, or security, they may institute a polygraph policy in the pre-employment screening.
However, if the employer doesn’t fall into one of these exempted industries, it disqualifies them from using a polygraph policy. They may not use lie detector tests in the pre-employment screening process or in the random testing of their employees.
Not Enough Lead Time
The terms of the EPPA stipulate that the employer must give the employee sufficient notice of their intention to polygraph them. Typically, the minimum timeframe between notification and execution of the lie detector test is 48 hours.
If the employer fails to notify the employee of the lie detector exam within this minimum period, it disqualifies the employee from participating in the lie detector test. Forcing an employee to undergo the exam without sufficient notice places the employer in violation of the EPPA.
Incorrect Explanation of Your Rights
When the employer notifies the employee of their intention to polygraph them, the employer must explain the employees’ rights regarding their obligations to participate in the test. The EPPA has a set of criteria the employer must meet to institute a workplace policy and the rights afforded to employees in the process.
The employer must call the employee into their office for a private meeting. During the meeting, the employer must clearly explain the employee’s rights regarding the polygraph policy. Failure to clearly define the rights or omitting rights from the explanation constitutes a violation of the EPPA. As a result, the employee is disqualified from taking the lie detector test.
Failing to Sign or Receive Documents
While explaining the rights to the employee, the employer must provide proof they did so. The polygraph examiner will arrange paperwork explaining these rights and outlining the process of the polygraph policy. The employer must ensure the employee signs all the relevant documents to be in compliance with the EPPA.
The employer must also issue the employee with a copy of this signed paperwork to remain in compliance with the EPPA. Failing to get the employee to sign the documents or failing to distribute copies of these documents to the employee disqualifies them from participating in the lie detector test.
No Question Prep
During the pre-exam preparation process, the polygraph examiner must give the employee a list of the questions they’ll have to answer during the polygraph exam. The examiner must stick to these questions during the lie detector test, and the questions may not intrude on the employee’s personal life. Failing to adhere to these questions during the test is a violation of the EPPA.
If the employee is not made aware of the questions before the exam date, it disqualifies them from taking the lie detector test. The employer works with the examiner to ensure the questions asked during the exam are pertinent to the reason for implementing the polygraph policy. Failing to properly prepare the employee with the queries results in disqualification from participation in the lie detector test.
While the onus of responsibility primarily lies with the employer for correctly outlining the terms and conditions of the polygraph policy, the employee also has certain criteria they must meet to participate in the lie detector test. If they breach these criteria, it disqualifies them from participating in the lie detector test.
The disqualifying criteria prevent the employee from undertaking the lie detector test.
As mentioned, the employer must ensure they adhere to the requirements of the EPPA when administering the polygraph exam. However, the employee must also meet obligations if they choose to participate in the process. The examiner gives the employer a specific date and time for the exam during the preparation process.
Sometimes, the examiner will arrange the lie detector test at an external venue away from the employer’s office. This practice usually occurs when the employer doesn’t have suitable facilities to conduct the test. For instance, the employer might only have a shop front, a break room, and a stock room at their business. As a result, there is no suitable environment to conduct the test.
If the employee shows up late for the test, the examiner may choose to disqualify them from participating. In this case, it is not the examiner’s fault for the employee’s tardiness, and the polygraph company may bill the employer for the wasted time.
The polygraph exam is a stressful experience. While the examiner must make the employee feel at ease with the process, they may be unable to do so with all examinees. Some employees may suffer from anxiety disorders. As a result, they find themselves triggered in highly stressful environments, such as polygraph exams.
If the employee has a medical diagnosis of their condition from a doctor, it disqualifies them from participating in the lie detector test. These individuals may experience a strong fight-or-flight response in the exam room that initiates a panic attack. As a result, the polygraph test might constitute a threat to their health.
The employer must respect the employee’s condition, and provide an exemption for the employee, provided the employee can provide written proof from a medical professional that they suffer from their stated condition. In this case, forcing the employee to take the polygraph exam would constitute a violation of the EPPA.
Non-Medical Conditions and Behaviors
After being notified of their polygraph exams, employees have a right to ask the examiner and employer questions surrounding the lie detector test to familiarize themselves with the process. This action reduces pre-exam anxiety surrounding the exam, reducing the chance of the polygraph machine inducing a false positive result.
However, some employees may research the use of “countermeasures” for the exam. They may visit websites and online forums discussing ways to “beat” the polygraph exam. While these countermeasures were effective in the past, the modern polygraph machine can detect if the examinee is using these countermeasures during the test.
If the examiner discovers the employee researched countermeasures, they may disqualify the employee from participating in the test. It’s common for examiners to open proceedings asking the employee if they investigated the polygraph exam and if they studied any countermeasures or plan to use them during the test.
Using Unauthorized Medications
It’s common for examinees who investigate countermeasures to attempt to suppress the nervous system response and the fight-or-flight mechanism through the use of drug-based countermeasures. Beta-blockers and anti-anxiety medications, like Xanax, dampen the fight-or-flight response in the examinee.
However, the sophisticated polygraph technology used by examiners and the examiner’s experience can detect if the examinee is using these medications in an attempt to deceive the test. If the examiner discovers the use of these medications, it disqualifies the employee from continuing with the polygraph exam.
Some employees with anxiety disorders may need to remain medicated to cope with their lives. If that’s the case, these employees have the choice of participating in the exam. The examinee also has the option to disqualify the employee from participating in the lie detector test.
You Have the Right to Refuse a Polygraph Exam
Employees have the right to refuse their employer’s request to participate in a lie detector test. Employers may not enforce a polygraph policy on employees if they deny their request. The employer may also not use this denial of their request to affect the employee’s workplace experience.
That means that the employer may not fire or reprimand the employee in any capacity if they refuse the test or are disqualified from participating. If the employer decides to make the workplace environment uncomfortable for the employee because they refuse to participate in the polygraph, they violate the EPPA.
The employee has the right to seek legal counsel to assist them with filing the violation with the US Labor Department. The Labor Department takes these filings very seriously and will appoint a representative to investigate the matter.
If found in violation of the EPPA, the employer will have to pay the penalty for each instance. So, if the US Labor department finds ten cases of employers violating the act with ten employees, they will have to pay ten fines, ranging up to as much as $50,000 per violation.
This financial penalty places the employer’s business at risk, and they may have to file for bankruptcy due to the financial obligation. Therefore, the employer must consult an attorney and an accredited polygraph company when designing and implementing their polygraph policy.
What are the Consequences of Polygraph Test Disqualifications?
Unfortunately for employers, the consequences of disqualification from polygraph exams are more costly for employers than employees. If the employer violates the EPPA, they’re at risk of an investigation by the US Labor Department. As mentioned, the consequences of violating the EPPA can come with huge financial liability for the employer.
There are no consequences for the employee if they experience disqualification from the polygraph exam. The employer has no legal recourse against them and cannot threaten, intimidate, reprimand, or fire the employee. The EPPA heavily weights protection in the employee’s favor when the employer institutes a polygraph policy.