Employee Polygraph Protection Act (EPPA) - Wisconsin

Summary of differences between federal and state regulations

Polygraph protection

Polygraph protection provisions apply to employees and prospective employees in the private-sector and in state and local governments. Employers may not require employees or applicants to take any lie detector or similar tests as a condition of employment or continued employment. An employer may not take adverse employment action against any person who refuses, declines, or fails to take a test or exercises his or her rights under the polygraph protection provisions.

A Wisconsin employer may ask employees to take a polygraph test if:

• The test is given as part of an ongoing investigation involving theft, embezzlement, misappropriation, unlawful industrial espionage or sabotage, or other economic loss or injury to the employer’s business.
• The employee had access to the property in question.
• The employer has reasonable suspicion that the employee was involved.

A Wisconsin employer may ask applicants to take a polygraph test if:

• The business provides security-related services or equipment to operations that have a significant impact on public health, safety, or welfare (including facilities that produce, transmit, or distribute power, supply water, ship or store radioactive or other toxic wastes, or provide public transportation) or to operations that handle currency, securities, precious items, and proprietary information.
• The applicant is applying for work with a law enforcement agency.
• The applicant’s job duties would involve having direct access to the manufacture, storage, distribution or sale of a controlled substance.

The employee or applicant must be provided with oral and written advance notice of:

• The date, time, and location of the test.
• The right to legal counsel.
• The nature of the test.
• The characteristics of the test and instruments to be used (and whether any devices in addition to the polygraph instrument will be used).
• Whether or not the test area contains a two-way mirror, camera, or other observation device.
• The right to make his or her own recording of the test.
• The questions to be asked during the test.

The employee or applicant must sign a written notice stating:

• That he or she cannot be required to take the test as a condition of employment.
• That any statement made during the test may be used as supporting evidence for an adverse employment action.
• The limitations on the use of a polygraph test.
• The legal rights and remedies available to the employee or applicant and the employer.

During a polygraph exam the employee or applicant can stop the test at any time. The employee or applicant may not be asked degrading or intrusive questions and may not be asked questions about religion, politics, sexual behavior, racial matters, or lawful activities of unions and labor organizations. The employee or applicant may not be tested if there is medical evidence that his or her test results would be abnormal due to a medical or psychological condition or treatment.

Before an employer can take any adverse employment action he or she must:

• Provide the employee or applicant with the test results, questions asked, and corresponding responses.
• Interview the employee or applicant about the test results.
• Offer the examinee the opportunity to explain any questionable responses or to retake the examination or both. If subsequent responses or a reexamination clarifies a questionable response, the results of the initial test must be removed, corrected, or clarified in the employee or applicant’s personnel records.

Polygraph test results may not be used as the sole determinant for adverse employment action.

Polygraph examiners

Wisconsin does not have state-level polygraph examiner requirements. Examiners must meet the federal requirements at 29 CFR 801.26.

As a minimum, only those instruments that record permanently and simultaneously cardiovascular, respiratory and galvanic skin response can be used to detect or verify the truth of statements.

State

Contact

Wisconsin Department of Workforce Development, Equal Rights Division

Regulations

Polygraph protection

Chapter 111, Section 111.37(2) of the Wisconsin Statutes

Polygraph examiners

Chapter 111, Section 111.37(1)(c)1 of the Wisconsin Statutes

Federal

Contacts

U.S. Department of Labor, Wage and Hour Division

Regulations

29 CFR Part 801 §§801.1 – 801.75