Employee Polygraph Protection Act

Scope

The law applies to employers engaged in or affecting commerce (the same applicability as in the Fair Labor Standards Act). The law does not apply to federal, state, and local governmental employers. Many states have their own statutes, especially involving examiner licensing, stricter provisions than the federal law, and admissibility of the results. State statutes usually have a wider scope than the EPPA.

Regulatory citations

• 29 U.S. Code Chapter 22 —Employee polygraph protection
• 4.2(a) of Executive Order 12356

Key definitions

• None

Summary of requirements

The Department of Labor (DOL) has published rules to implement the provisions of the EPPA. The agency published interim final rules in the Federal Register on October 21, 1988, with an effective date of December 27, 1988 (the effective date of the Act). Final rules were published March 4, 1991, with an effective date of April 3, 1991. The rules, administered by the DOL’s Wage and Hour Division, are found in Title 29 Part 801 of the Code of Federal Regulations (CFR).

The law does not preempt any state or local law or any negotiated collective bargaining agreement that prohibits lie detector tests or is more restrictive.

Applicability. In general, the law prevents employers from using lie detector tests either for pre-employment screening or during the course of employment. The employer cannot discipline, discharge, or discriminate against employees for refusing to take a lie detector test or for exercising their rights under the Act. However, the Act contains several exemptions that do allow certain types of employers to give lie detector tests under certain circumstances.

Exemption applicable to government contractors. The federal government can administer lie detector tests to private-sector contractors and their employees under the Act’s National Defense and Security Exemption. The exemption allows the federal government, in the performance of any counterintelligence function, to give lie detector tests to contractors and their employees who work for the Department of Defense, the Department of Energy (when the contract is in connection with atomic energy defense activities), and the Federal Bureau of Investigation.

The federal government, in the performance of any intelligence or counterintelligence function, can give lie detector tests to contractors and their employees who work for:

• The National Security Agency,
• The Defense Intelligence Agency,
• The Central Intelligence Agency, or
• Any federal government department, agency, or program whose duties involve access to information that has been classified at the level of “top secret” or designated as being within a special access program under section 4.2(a) of Executive Order 12356 (or a successor Executive order).

Under the exemption, the law puts little restriction on how the federal government can use lie detector tests (on private-sector contractors) for the above national defense and security reasons. The federal government may use any type of lie detector (deceptograph, voice stress analyzer, psychological stress evaluator, or any other similar device). The government is not limited to using polygraphs, which simultaneously record changes in cardiovascular, respiratory, and electrodermal patterns.

These agencies may conduct their lie detector tests without having to meet the Act’s provisions for using the test as the basis for adverse employment action, the rights of the examinee, the qualifications of examiners, or the disclosure of results.

Exemption for private sector security service firms. Employers who provide security services can give polygraph tests to certain prospective employees under the Act’s Exemption for Security Service. The firm’s primary business activity has to be providing certain services (such as armored cars, alarm systems, or security guards) that function to protect various public infrastructures, hazardous materials, currency, valuables, information, etc. The polygraph tests may be given only to prospective employees to be employed to protect these facilities, materials, operations, or assets.

The results of a polygraph test, or the refusal to take a polygraph test, may not be used as the sole basis upon which an adverse employment action (i.e., denial of employment or promotion, or other discrimination) is taken against a prospective employee.

Exemption for private-sector drug-related firms. The Act has similar exemptions for employers that manufacture, distribute, or dispense certain controlled substances under the Act’s Exemption for Drug Security, Drug Theft, or Drug Diversion Investigations. These employers may administer polygraph tests to prospective employees who would have direct access to the controlled substance. In order to test current employees, there must be an ongoing investigation of misconduct involving the controlled substances and the employee must have had access directly related to the investigation.

The results of a polygraph test, or the refusal to take a polygraph test, may not be used as the sole basis upon which an adverse employment action (discharge, disciplinary action, denial of employment or promotion, or other discrimination) is taken against an employee or prospective employee.

Exemption for any private-sector employer. Any private employer may give polygraph tests if there is an ongoing investigation involving economic loss or injury to the employer’s business under the Act’s Limited Exemption for Ongoing Investigations. Under this exemption, the employer has to have been the victim of a theft or other wrongdoing before it may administer polygraphs tests. In addition, the employee must have had access to the property in question, and the employer must have reasonable suspicion that the employee was involved.

The employee may not be discharged, disciplined, denied employment or promotion, or otherwise discriminated against in any manner on the basis of the analysis of a polygraph test chart, or the refusal to take a polygraph test, without additional supporting evidence (such as the evidence of the employee’s access to the property and the employer’s reasonable suspicion that the employee was involved in the incident or activity under investigation).

Administering tests in the private sector. A private-sector employer administering a test under one of the Act’s exemptions has responsibilities before, during, and after the test.

A private-sector employer conducting an ongoing investigation must provide the examinee a written statement before giving the employee a polygraph test. The statement has to describe the incident being investigated, identify the specific economic loss, indicate that the employee had access, describe why the employer has reasonable suspicion of the employee’s involvement; and it must 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:

• The examinee must get a written notice of the date, time, and place of the test and the examinee’s right to have legal counsel or an employee representative before each phase of the test.
• The examinee must be informed in writing of the nature and characteristics of the tests and of the instruments involved.
• The examinee 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.
• The examinee must sign a written notice stating that he or she cannot be required to take the test as a condition of employment, statements made can support adverse employment action (including termination), and that the examinee has various legal rights and remedies.
• The examinee also has a right to review all test questions. During the test, the examiner may ask only those questions that were previously disclosed to the examinee.
• The examinee must be informed that he or she can stop the test at any time.

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

• Review the test results with the employee.
• Provide the employee with a written opinion of the results.
• 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.
• 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 must 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. The examiner’s opinion must be in writing, based solely on the test results. The opinion 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 polygraph test only to the examinee (or any other person specifically designated in writing by the examinee) and the employer that requested the test.

The polygraph examiner may also disclose information to any court, governmental agency, arbitrator, or mediator, in accordance with due process of law, pursuant to a court order. A private-sector employer for whom a polygraph test is conducted may disclose information from the test only to the examinee (or any other person specifically designated in writing by the examinee) or to a governmental agency (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 of 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. These records include:

• Written evidence by a physician that the examinee has a condition or is undergoing treatment that might cause abnormal responses;
• A written notice of the date, time, and location of the test, and the examinee’s right to legal counsel (or consultation with an employee representative) before each phase of the test;
• A written description of the nature of the tests and of the instruments involved;
• A written notice as to whether the testing area contains a two-way mirror, a camera, or any other recording or observation device and that the employer or the examinee may (with mutual knowledge) make a recording of the test;
• A written notice (signed by the examinee) explaining the Act’s limitations and the employer’s and the examinee’s legal rights. The notice must also inform the examinee that the examinee may not be required to take the test as a condition of employment and that any statement made during the test may be supporting evidence for an adverse employment action;
• The questions asked during the test along with the corresponding charted responses; and
• A copy of the examiner’s written opinions and conclusions.

The examiner must keep all opinions, reports, charts, questions asked during the test, lists, and other records for at least three years following the test.

Employee protections when exemptions do not apply. The Act’s exemptions do not apply in all situations. When no exemption applies, employees and prospective employees are entitled to the Act’s protections.

The law prohibits employers from directly or indirectly requiring, requesting, suggesting, or causing any employee or prospective employee to take or submit to any lie detector test. The employer may not use, accept, refer to, or inquire concerning the results of any existing lie detector test that an employee or prospective employee may have already taken.

Employers may not take action against employees or prospective employees for exercising their rights under the Act. Those rights include:

• Refusing, declining, or failing to take or submit to any lie detector test, filing a complaint with the Wage and Hour Division;
• Instituting a complaint in civil court; and
• Testifying in a proceeding.

The employer may not discharge, discipline, discriminate against in any manner, or deny employment or promotion to, or threaten to take any action against any employee or prospective employee because the employee has exercised these rights — or on the basis of any lie detector test.

Penalties. Any employer who violates the Act can be assessed a civil penalty of not more than $10,000, and employees (or prospective employees) can bring civil suits against the employer.