• Both employers and examiners have responsibilities when performing polygraph tests.
• Both employers and examiners must keep pertinent paperwork for three years.

Private-sector employers administering a test under one of the Employee Polygraph Protection Act (EPPA)’s exemptions have responsibilities before, during, and after the test.

Employers conducting an ongoing investigation must provide examinees a written statement before giving them a polygraph test. The statement must:

• Describe the incident being investigated;
• Identify the specific economic loss;
• Indicate that the employee had access;
• Describe why they have reasonable suspicion of the employee’s involvement; and
• Be signed by the employer.

The following examinee rights apply to all private-sector employers administering a test under one of the Act’s exemptions:

• Examinees must get a written notice of:
  • The date, time, and place of the test; and
  • Their right to have legal counsel or an employee representative before each phase of the test.
• Examinees must be informed in writing of:
  • The nature and characteristics of the tests; and
  • The instruments involved.
• Examinees must be informed in writing of:
  • Whether the test area has a two-way mirror, camera, recording device, etc.; and
  • That the employer or employee may make a recording of the test.
• Examinees must sign a written notice stating that:
  • They cannot be required to take the test as a condition of employment;
  • Statements made can support adverse employment action, including termination; and
  • They have various legal rights and remedies.
• Examinees also have a right to review all test questions.
  • During the test, the examiner may ask only the questions that were previously disclosed to the examinees.
• Examinees must be informed that they can stop the test at any time.

Following the test, before employers may use the results for any adverse employment action, they must:

• Review the test results with the employee;
• Provide the employee with a written opinion of the results; and
• Give the employee a written copy of the test questions with corresponding charted responses.

During any part of the test process:

• The examinee may terminate the test;
• The examiner may not ask degrading or discriminating questions;
• The examiner may not ask questions concerning the examinee’s beliefs regarding:
  • Religion;
  • Race;
  • Politics;
  • Sexual behavior; or
  • Labor union activities.; and
• The test may not take place if there is written evidence by a physician that a medical or psychological condition could cause abnormal responses.

Examiner requirements

When any private-sector employer administers a polygraph test, the examiner must:

• Have a valid state-issued license, if applicable; and
• Be bonded at $50,000 or hold an equivalent amount of professional liability insurance.

The examiner may not conduct more than five polygraph tests per day, and each test must be at least 90 minutes in duration. Their opinion must be in writing, based solely on the test results, and cannot include any employment recommendations.

Disclosure of results

With some exceptions, only the examinee may disclose information obtained during a polygraph test.

The Act allows the polygraph examiner to disclose information from a test only to the:

• Examinees or anyone specifically designated in writing by them; and
• Employers who requested the test.

However, in accordance with due process of law pursuant to a court order, examiners may also disclose information to any:

• Court
• Governmental agency
• Arbitrator
• Mediator

A private-sector employer for whom a test is conducted may disclose information from the test only to:

• Examinees or anyone specifically designated in writing by them; and
• Governmental agencies, if the disclosed information is an admission of criminal conduct.

Poster

Private-sector employers must post a notice describing the Act where it will be conspicuous to both employees and applicants for employment.

Recordkeeping requirements

Private-sector employers who conduct polygraph tests as part on an ongoing investigation must maintain, for three years, a copy of a signed statement that is provided to the examinee before the test. The statement must:

• Identify the specific economic loss or injury to the business of the employer;
• Indicate that the employee had access to the property that is the subject of the investigation; and
• Describe the basis of the employer’s reasonable suspicion that the employee was involved in the incident or activity under investigation.

It would be a best practice for all private-sector employers to retain records involving the rights of the examinees, found above.

For at least three years following the test, examiners must keep all:

• Opinions
• Reports
• Charts
• Questions asked during the test
• Lists
• Other records