Is your employer preparing a polygraph policy for the office? There’s chatter around the water cooler that the boss wanted to get to the bottom of the inventory theft last week, and she’s considering polygraphing the team to find the culprit.
Is it even legal to institute a polygraph policy in the workplace? What are your rights as an employee regarding taking a lie detector test? It’s a confusing and stressful situation for the team, and everyone in the office feels on edge about it.
The reality is the polygraph isn’t as bad as you think. Your boss isn’t going to drag you into a dark room, strap you to a chair and grill you for hours on end. The media makes lie detector tests seem more carry than they actually are.
Most employers use polygraph policies to make the workplace a safer space for everyone on the team. That said, there are things they can and can’t do when instituting a polygraph policy. Your boss needs to follow a specific protocol to ensure they don’t get in trouble with the US Labor Department for their use of lie detectors in the workplace.
This post looks at the specifics of the law protecting you from your employer abusing the polygraph in the workplace. We’ll show you the legalities of using lie detectors at work and when your boss violates the legislation protecting you from abusive polygraph practices.
What Is the Employee Polygraph Protection Act?
The “Employee Polygraph Protection Act of 1988” (EPPA) is a piece of legislation designed to prevent employers from misusing the lie detector test in the workplace. It affects most companies operating in the private sector, and your organization may or may not have to comply with it.
The polygraph is a hotly disputed technology in business and in legal proceedings. While the justice system decided that polygraph results aren’t useful in court proceedings, many private and public-sector organizations still use them in monitoring their staff.
For example, the Federal Government’s frequent use of polygraph testing during the 1960s led to over 63,000 screenings in 1963 alone. Its popularity in organizations like the CIA and FBI caught the attention of Congress, causing them to ask for further investigation into the technology, its uses, and its validity.
Directive 5210.48 from the Department of Defense was issued in 1965, with the DOD revising it in 1984. The directive aimed to regulate how Federal organizations used polygraph testing and design specific testing procedures.
The 1970s and 1980s saw a drop in the use of polygraph exams, promoting the Federal government to take more interest in its use in employee and tactical screening processes. In the early 80s, Government agencies, specifically those involved in the intelligence community, experienced several leaks of classified information.
As a result, President Ronald Reagan issued the National Security decision directive 84 during his first term in office in 1983. The directive saw the implementation of polygraph screening policies for Federal employees in the event of internal intelligence leaks.
In 1986, the Department of Defense issued the Authorization Act of 1986, broadening this directive. The Act added to the power of Federal organizations’ use of polygraph examinations in extreme circumstances involving the leaking of classified information.
However, many experts started bringing up issues with the accuracy of the polygraph. They stated there was no scientific evidence pointing to the reliability of the polygraph in these testing scenarios. As a result, The House of Representatives launched the “Federal Polygraph Limitation and Anti-Censorship Act” in 1984 to combat President Reagan’s directive.
Congressional departments, like the Office of Technology Assessment, conducted evaluations of polygraph accuracy. Secretary of State, George Shultz, criticized Reagan in the final days of his first stint in office after the President declined to take a polygraph himself.
The increasing discord against using the polygraph in private and public-sector industries led to Reagan establishing the “Employee Polygraph Protection Act,” signing it into power during the final days of his second term.
The EPPA prohibits employers from using polygraphs in pre-employment screening processes for candidates. At the time, more than a million of these exams took place in private-sector businesses each year in the United States.
Are There Exemptions to the Employee Polygraph Protection Act?
However, despite the EPPA being legislation preventing private-sector employers from using polygraphs in pre-employment and on-the-job screening practices, it didn’t apply to public-sector organizations. Agencies like the FBI, CIA, NSA, and DOD were permitted to carry on their use of the polygraph in their operations.
The EPPA also allowed exemptions from the Act for certain private-sector businesses. Organizations involved in high-risk industries, such as security, nuclear power plant operations, pharmaceutical distribution and manufacturing, and high-value asset transport and storage, were exempt from complying with the EPPA.
The idea behind these exemptions was to prevent criminal elements from entering these organizations where they might harm the company by collaborating with criminals. For instance, a drug addict joining a pharmaceutical manufacturing company could have disastrous results for the organization, resulting in potential inventory theft or robberies.
All other private-sector employers were prohibited from using polygraphs in pre-screening practices for job candidates. However, the EPPA did provide an exemption for these employers to use polygraph policies in the event of severe employee-related outcomes at their organization.
If the employer experienced a large theft presenting an economic risk to the company, they could use a polygraph policy to find the perpetrator. Likewise, the employer could implement a polygraph policy in the case of discovering fraud at their organization, sexual harassment cases, or suspected drug abuse in the workplace.
If an employer decides to implement a workplace polygraph policy, they must follow strict guidelines set by the EPPA when rolling it out. Failing to do so places them in violation of the EPPA, exposing their business to massive financial penalties.
Guidelines for Private-Sector Employers Instituting a Polygraph Policy
Here are some general guidelines the employer must follow when implementing a workplace polygraph policy. Failure to comply with them violates the EPPA, leading to severe penalties for the company.
- The polygraph must be part of an ongoing investigation into a valid matter.
- The employer must understand the use of the Employer Polygraph Protection Act.
- The employer must present the employee with a document signed by an authorized person legally representing the employee that is not the examiner.
- The employer must read the “Notice to Examinee” to the employee aloud.
- The employee must sign and date the document, which must be witnessed.
- The employers must provide at least 48 hours notice of their intention to polygraph the employee.
- The employer must provide the employee with the exam’s date, time, and location.
- The employer must maintain records for a minimum of three years.
- Employees cannot waive their rights.
- Police and investigators cannot share the polygraph results, and employers cannot use or inquire about polygraph results.
- Employers must check the polygraph examiner’s credentials and documentation of licensing and liability insurance.
- The employee must receive all documents on company letterheads.
- A corporate attorney must ensure compliance with the EPPA.
Guidelines for Examiners Conducting Private-Sector Polygraph Exams
The employer collaborates with an accredited polygraph company when planning their polygraph policy. The polygraph company appoints an examiner to assist clients with structuring the polygraph policy and executing the lie detector tests. The examiner must also adhere to strict EPPA guidelines when instituting the test.
Here are some examples of examiner duties to employees and employers.
- Provide employers with copies of the EPPA guidelines.
- The examiner cannot assist employers in determining which employees to test.
- The examiner must give the employee a written clarification of the testing procedures.
- The employee must sign and date the document.
- The examiner must read aloud the employee’s rights and answer all questions the employee has regarding the test.
- The examiner must advise the employee of their employer’s intention, if any, to view the session through a 2-way mirror or the video recording of the exam.
- The examiner must have a minimum of $50,000 liability coverage.
- The examiner must provide the employee with the test questions in writing and have the employee write out their answers and sign the document.
- The examiner must share the test results with the employee and allow an opportunity to explain their reactions.
- The examiner must provide a written report declaring the employee’s non-deception or deception.
- The examiner must keep copies of documents for a minimum of three years.
- The examiner must provide the employer with documents when test results are deceptive.
- The examiner must provide the Department of Labor with these copies within 72 hours after conducting the lie detector test.
What Constitutes a Violation of the Employee Polygraph Protection Act of 1988?
So, what constitutes a violation of the EPPA? Here are the seven ways the employer and examiner can violate the employee or candidate’s rights during the polygraph exam.
- Requesting, requiring, causing, or suggesting the employee or candidate must take a polygraph exam. Or accepting, using, referring, or inquiring about the test results of any candidate or employee other than those provided in the Act or part 801.
- Discriminating against the candidate or employee or taking adverse reactions against them based on their refusal to comply with the request to take a polygraph exam.
- Retaliating or discriminating against the candidate or employee for exercising the right afforded to them by the EPPA.
- Disclosure of information from the polygraph exam except as authorized by the EPPA or part 801.
- Failing to maintain the records and documents of the test.
- Opposing, resisting, intimidating, impeding, or interfering with officials from the Department of Labor during an investigation of violations.
- Violating other provisions of the EPPA or part 801.
Can an Employer Fire Me or Reprimand Me for Failing a Polygraph?
The EPPA protects the employee from any employer misconduct in the event of a failed test. If the employee fails their polygraph exam, there’s little the employer can do about it. They can’t fire the employee or reprimand them in any manner; doing so violates the EPPA, and they can get in serious trouble.
The employer can’t suspend the employee, dock their pay, or intimidate them into leaving the company. If the employer tries to make life at work uncomfortable for the employee if they refuse the exam or fail the test, they have legal recourse against them.
The EPPA favors the employee over the employee in this case and prevents the employer from taking any action against them in case of a failed test. However, suppose the employee fails the test regarding a criminal investigation. In that case, the employer may refer the test results to the police and start criminal proceedings against them to bring them to justice.
What Do You Do If Your Employer Violates the Employee Polygraph Protection Act?
If you feel your employer violated the terms of the EPPA, you have a case against them. You can seek legal representation, and your lawyer can file an official complaint with the US Labor Department.
The Secretary of the Labor Department is obliged to investigate any complaints against the employer, and they’ll look into the matter.
The US Labor Department takes any complaints seriously, and you can rely on them to investigate the employer and the examiner responsible for conducting the test.
What are the Penalties Involved with Violating the Employee Polygraph Protection Act?
The penalties involved with employers violating the EPPA are severe and have a huge financial cost to the company. If the Department of Labors investigation reveals the employer is in violation, they’re subject to a $10,000 fine for their transgression.
This fine applies to each violation. So, for instance, if four employees file complaints against the employer and the DOL finds them guilty of a violation, they’ll have to pay $40,000 in fines. That’s a huge financial liability for the employer, and it could place their company at risk of financial problems from the fallout.
So, you can expect your employer to follow the EPPA guidelines when implementing their polygraph policy. Failing to do so presents a massive risk to their business.