If you are a job applicant or an employee in the United States, you have certain legal rights when it comes to polygraph testing in the workplace. Polygraph tests can be part of the hiring process for federal, state, and government jobs, as well as national security jobs. However, the Employee Polygraph Protection Act prohibits the majority of private employers from using them as part of their screening process
The primary federal law governing the use of these tests is the Employee Polygraph Protection Act (EPPA), which was passed by Congress in 1988.
The EPPA is enforced by the Department of Labor and is designed to protect individuals from the potential abuses and intrusions associated with polygraph testing in the workplace. It establishes strict guidelines for employers and examiners who wish to administer these tests and provides a range of legal protections and remedies for employees who may be subjected to them.
Under the EPPA, most private employers are prohibited from requiring or requesting that job applicants or employees take a polygraph test, with few exceptions. For example, employers in certain industries, such as armored car services, private security firms, or pharmaceutical manufacturers, may be allowed to require employees to take a polygraph test as part of the job screening process. The EPPA also allows employers to administer polygraph tests to employees who are reasonably suspected of involvement in certain types of workplace misconduct, such as theft or embezzlement.
However, even in cases where polygraph testing is allowed under the EPPA, there are strict guidelines and procedures that employers and examiners must follow in the pre-test, testing, and post-test stages.
Examiners must also follow standardized procedures for administering the tests and interpreting the results and are prohibited from asking certain types of questions that could be considered invasive or irrelevant to the purposes of the examination.
One of the most important legal rights that the EPPA provides to employees is the right to refuse or terminate a polygraph test. This means that if you are asked to take a test and you feel uncomfortable or believe that it is being administered unfairly or improperly, you have the right to decline to take the test or to terminate it at any time. In addition, the EPPA requires that examiners provide examinees with an opportunity to explain any physiological responses that may be related to medical or other factors rather than deception.
The purpose of this article is to provide you with a comprehensive overview of the Employee Polygraph Protection Act (EPPA) and its role in governing the use of polygraph exams in the workplace. By the end of this article, you will have a better understanding of your rights and protections as a polygraph examinee under federal law.
Legal Rights for Polygraph Examinees under the EPPA
Right to notice of examination
Under the EPPA, you have the right to receive notice of an examination in advance. Specifically, the employer must provide written notice of the examination, including the date, time, and location of the exam. Additionally, the notice must inform you of the nature and purpose of the examination, as well as your legal rights.
This notice must be provided at least 48 hours before the scheduled examination, and if you request it, the employer must provide a copy of the notice in a language that you understand. If the employer fails to provide the required notice, any resulting test may be deemed inadmissible in a legal proceeding.
The notice requirement does not apply to certain examinations, such as those related to ongoing investigations of economic loss or injury or those required by federal, state, or local laws. In these cases, however, the employer must still provide some form of notice, even if it is not as extensive as the notice required under the EPPA.
Right to refuse examination
In accordance with the Employee Polygraph Protection Act (EPPA), you have the right to refuse to take a polygraph examination if your employer requires it. This means that if your employer asks you to take a polygraph test, you have the right to say no without fear of being fired or discriminated against.
If you refuse, your employer is prohibited from retaliating against you in any way. He cannot fire you, demote you, or reduce your pay or benefits.
As with the right to notice, there are some exceptions. For example, if you work in the security field, such as for a private security firm or a government agency, you may be required to take a polygraph test as a condition of employment. In addition, if you are the subject of an ongoing investigation by law enforcement, you may be required to take one.
Right to confidentiality
Under the Employee Polygraph Protection Act (EPPA), you have the right to confidentiality with respect to the results of a polygraph test. Employers are not allowed to disclose the results of a test to anyone other than the tested individual or their representative. Additionally, employers are required to maintain the results of any test and any other records relating to the test in confidence for at least three years from the date the examination was conducted (or from the date the examination was requested if no examination was conducted):
- a statement of the incident.
- Any record of refusal to take a polygraph examination.
- Records of the number and duration of the examination, questions asked, and results.
The right to confidentiality helps protect you from any negative consequences that may arise from a polygraph test. If an employer were to disclose the results of a test to someone other than the tested individual or their representative, it could result in harm to your reputation, privacy, and future employment opportunities.
Nonetheless, it is essential to keep in mind that there are certain exceptions to this confidentiality requirement. For example, an employer may be required to disclose the results of a test to a court or government agency if legally compelled to do so. Additionally, an employer may be allowed to disclose the results of a test if it is necessary to defend against a legal claim brought by the tested individual.
Right to have a representative present
In accordance with the EPPA, you have the right to have a representative present during the polygraph examination. This representative can be anyone you choose, such as a lawyer or a union representative, and they can provide you with advice and support throughout the process.
The representative is not allowed to answer questions on your behalf, and they must maintain confidentiality regarding the test results. They are also not permitted to interfere with the administration of the test in any way.
It should be noted that while you have the right to have a representative present, you are not required to have one. You may choose to attend the examination alone, or you may bring a representative with you to ensure that your rights are protected.
The presence of a representative can be particularly helpful if you have concerns about the administration of the test or if you are nervous or anxious about the process. Your representative can help to ensure that the examiner follows the proper procedures and that your rights are protected throughout the examination.
Right to an explanation of examination results
If you are subjected to an employment-related examination, you have the right to an explanation of the examination results. This means that the examiner must provide a written report of the results to you or your representative upon your request.
The written report should include information such as the questions asked during the examination, the examiner’s conclusions regarding your truthfulness, and any physiological responses observed during the examination. This report is required to be provided to you within a reasonable amount of time after the examination.
It is important to note that the EPPA does not require the examiner to disclose any trade secrets or confidential information related to the examination. However, you have the right to obtain an explanation of the results without compromising the confidentiality of the examiner’s methods or techniques.
Which questions are permitted to be asked?
There is a general scope of questions that could be asked. Depending on your test type, they could be about work-related concerns, injuries, criminal activities, drug usage, insurance history, credit history, providing false information, and other topics.
Under the EPPA, you have the right to interrupt the exam at any time and object to the questions being asked, and specific questions about religious or political beliefs, religion, race, and sexual orientation are prohibited.
Exceptions to the EPPA
Exceptions to the EPPA are limited and narrow in scope. Under certain circumstances, employers are allowed to use polygraph tests in specific situations, including:
- National Security: Federal, state, and local government agencies may administer polygraph tests to employees involved in national security-related activities. However, such testing must comply with the standards and procedures established by the Employee Polygraph Protection Act.
- Investigations of Economic Loss: Employers may use polygraph tests to investigate economic loss, such as theft or embezzlement, if the loss is substantial (generally defined as $5,000 or more). However, employers must have a reasonable suspicion that the employee was involved in the theft or loss and must follow strict procedures established by the EPPA.
- Controlled drug manufacturers or distributors: Employers engaged in the production, distribution, or dispensing of controlled substances may administer polygraph tests to employees involved in these activities.
- Certain Exempt Positions: Polygraph testing may be required for certain positions that are exempt from the EPPA, such as individuals working in security or with pharmaceuticals.
It is important to note that even in these exceptional circumstances, the employer must still comply with all of the provisions of the EPPA. The testing must be conducted in accordance with strict procedures established by law, and any violation of the EPPA can result in serious penalties for the employer, including fines and potential legal action by the employee.
Summary of the prohibited practices under the EPPA
Under the Employee Polygraph Protection Act (EPPA), certain practices related to polygraph testing are prohibited, including:
- Firstly, employers are prohibited from requiring or suggesting that an employee take a polygraph test as a condition of employment or continued employment. This means that an employer cannot make you take a polygraph test before hiring you or fire you if you refuse to take a polygraph test.
- Secondly, employers are not allowed to retaliate against employees who refuse to take a polygraph test or who file a complaint regarding an employer’s violation of the EPPA. This includes firing, demoting, or otherwise discriminating against employees who exercise their legal rights under the EPPA.
- Thirdly, employers are prohibited from using the results of a polygraph test in a discriminatory manner. For example, an employer cannot use the results of a polygraph test to discriminate against employees on the basis of race, sex, age, religion, national origin, or disability.
- Lastly, employers are not allowed to require employees to waive their rights under the EPPA as a condition of employment or continued employment. This means that an employer cannot make you sign a document waiving your right to protection under the EPPA.
It is important to note that these prohibited practices apply to most private employers, but there are some exemptions. For example, the EPPA does not apply to federal, state, or local government agencies or to employers engaged in national security or defence-related activities.
Civil and criminal penalties for violating the EPPA
As an employee, it’s important to know that there are serious consequences for employers who violate the Employee Polygraph Protection Act (EPPA). The EPPA is enforced by the U.S. Department of Labor, which can investigate and take legal action against employers who violate its provisions.
Civil penalties for violating the EPPA can include fines of up to $10,000 per violation. In addition to fines, the employer may also be required to pay damages to the employee, including any lost wages, benefits, or other compensation. The EPPA also allows for the recovery of reasonable attorney’s fees and court costs.
Criminal penalties for violating the EPPA can include fines of up to $20,000 and imprisonment for up to three years. These penalties apply to both the employer and the person administering the test. It’s important to note that criminal penalties are reserved for cases where the violation was wilful or knowing, meaning the employer or administrator was aware that they were breaking the law.
It’s also worth noting that, in addition to the penalties outlined in the EPPA, violating the law can also have reputational and business consequences for the employer. The mere mention of an EPPA violation can damage a company’s image and make it difficult to attract and retain employees.
Steps you can take if you believe your rights were violated
As an employee, it’s essential for you to know the steps to take if you have been subject to illegal polygraph testing.
If you believe that your rights have been violated, the first step is to inform the examiner of your concerns. If the examiner is unwilling to address your concerns, you can contact the U.S. Department of Labor’s Wage and Hour Division, which enforces the EPPA. Find and call the office nearest to you and discuss with an investigator. While there is no official form to fill out regarding polygraph testing violations, if you decide to file a complaint, you may write a letter addressed to the WHD local office.
Include details of the occurrence, such as employer information, the date, and how the representative can contact you. Keep a copy of your letter and all communication with WHD representatives for your records.
You can also file a complaint with the Equal Employment Opportunity Commission (EEOC), which investigates allegations of employment discrimination. If you believe that you have been discriminated against because you asserted your rights under the EPPA, you may also have a claim under Title VII of the Civil Rights Act.
It is important to note that there are time limits for filing complaints, so it is important to act promptly if you believe your rights have been violated. You should also keep records of any communication with the examiner or employer, as well as any documents related to the examination.
Examples of EPPA violations
Following are a few examples of EPPA violations:
- Administering polygraph tests without consent: Employers are required to obtain written consent from employees before administering a polygraph test. If an employer administers a polygraph test without obtaining consent, they are in violation of the EPPA.
- Failing to provide notice of the right to refuse: Employers must provide written notice to employees of their right to refuse a polygraph test. This notice must include a summary of their EPPA rights.
- Disclosing polygraph results: Employers are prohibited from disclosing polygraph test results to anyone other than the employee who was tested, their legal representative, or a government agency. If an employer discloses polygraph test results to an unauthorized individual, they may face civil penalties.
- Retaliating against employees: Employers are not allowed to retaliate against employees who refuse to take a polygraph test, file a complaint about an EPPA violation, or participate in any EPPA-related proceeding. Retaliation can include termination, demotion, or any other form of negative action against the employee.
- Asking improper questions: Employers must limit their polygraph test questions to those directly related to the investigation. They cannot ask questions about an employee’s religious beliefs, sexual orientation, or political affiliations, for example.
In one example of an EPPA violation, a company in Michigan required job applicants to take a polygraph test before being hired. The company did not meet any of the exceptions outlined in the EPPA, and as a result, the Department of Labor filed a lawsuit against the company. The company settled the case and paid over $20,000 in civil penalties.
In another example, an employer in Nevada required all employees to take a polygraph test after a theft occurred at the workplace. However, the employer did not meet any of the exceptions outlined in the EPPA, and as a result, the Department of Labor investigated and found that the employer had violated the law. The employer settled the case and paid over $10,000 in civil penalties.
Challenges and Criticisms of the EPPA
One of the primary criticisms of the EPPA is that it does not go far enough in protecting employees’ rights. For example, some critics argue that the EPPA should prohibit employers from even suggesting that employees take polygraph tests, rather than just limiting when and how they can be used. They argue that the mere suggestion of a polygraph test can create a coercive and intimidating atmosphere and that the EPPA should do more to prevent this.
Another criticism of the EPPA is that it is difficult to enforce. Although the law provides for both civil and criminal penalties for violations, it can be challenging for employees to prove that their rights have been violated. In some cases, employers may simply ignore the EPPA and use polygraph testing anyway, relying on the fact that employees are unlikely to report them or that they will not be caught.
Finally, some critics argue that the EPPA is not practical or effective in preventing abuse. They argue that employers can simply use other methods, such as psychological testing or background checks, to screen employees and that the EPPA does little to prevent this. They also point out that many employers do not use polygraph testing at all and that the EPPA may be an unnecessary and overly burdensome regulation.
Government employees and other exemptions
The only employees excluded from the EPPA are those who work in government or other potentially sensitive public roles. This exception includes those working for:
- Customs and Border Protection
- Federal, state, or local government officials
- Federal contractors engaged in national security intelligence or counterintelligence functions
In these positions, polygraph testing is required, and one is eligible to be retaken after two years. While exempt from the Employee Polygraph Protection Act, employees in these sectors are protected by civil service rules.
The Civil Service Reform Act of 1978 prohibits discrimination against a federal employee based on race, color, religion, sex, national origin, age, handicapping conditions, marital status, or political affiliation, similar to the Employee Polygraph Protection Act.
Polygraph laws by state
While the Employee Polygraph Protection Act protects private citizens in all states, some states have specific laws. These include:
- Alaska: AS 23.10.037 prohibits an employer’s request or suggestion of a polygraph test. This does not apply to government officials or other civil service employees noted above.
- Nevada: Rev. Stat. Ann. 613.480 to 613.510 permits the use of polygraphs with manufacturers or distributors of controlled substances, providers or designers of security systems, and other security personnel.
- New Jersey: J. Stat. Ann. 2C:40A-1 allows polygraph testing when the individual has access to dangerous drugs or controlled substances.
- Pennsylvania: 18 Pa. Cons. Stat. Ann. 7321 allows polygraph testing when the individual has access to narcotics or dangerous drugs.
- Rhode Island: I. Gen. Laws 28-6.1-1 to 28-6.1-4 prohibit the request or suggestion of a polygraph test by an employer. This law does not apply to government officials or other civil service employees noted above.
- Vermont: Stat. Ann. tit. 21, § § 494 to 494e allows polygraph testing when the individual has access to controlled substances and those who sell precious gems and/or jewelry.
- Virginia: Code Ann. 40.1-51.4:3 prohibits questions specifically related to sexual activity.
- Washington: Rev. Code Ann. 49.44.120 allows polygraph testing when the individual has access to controlled substances.
- West Virginia: Va. Code 21-5-5a to 21-5-5d allows polygraph testing when the individual has access to controlled substances.
- Wisconsin: Stat. Ann. 111.37 permits the use of polygraph testing with manufacturers or distributors of controlled substances, providers or designers of security systems, and other security personnel.
The constitution on polygraphs
As polygraph testing has become increasingly common in the U.S., some citizens have raised concerns that it violates constitutional amendments. Nevertheless, no polygraph test has yet been ruled unconstitutional.
The fourth amendment secures:
“The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures shall not be violated, and no warrants shall issue but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched and the persons or things to be seized,”
Some have argued that polygraph testing is a form of “search.” This amendment is particularly relevant to government employees who are required to take one. Polygraph testing is not currently seen as a violation of this amendment, however.
The debate concerning the sixth amendment and polygraph testing was the focus of 44 M.J. 442 (reversed). The sixth amendment states that,
“In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor; and to have the assistance of counsel for his defense.”
This could mean polygraph testing should be permitted in court if used in defense, especially in accordance with Military Rule of Evidence 707. The United States v. Scheffer case, however, ruled that polygraph tests being inadmissible in court is not unconstitutional due to their refuted accuracy.
While the EPPA has been successful in protecting employees from unethical polygraph testing, there are some challenges and criticisms of the act. For example, some argue that polygraph testing can be a valuable tool in certain circumstances, such as when investigating workplace theft or fraud. Others argue that the EPPA does not go far enough in protecting employee privacy.
Overall, the EPPA serves an important role in protecting employee rights and ensuring that polygraph testing is used fairly and appropriately in the workplace. By understanding your rights under the act and asserting them when necessary, you can help ensure that you are protected from unjustified polygraph testing.