What is the Employee Polygraph Protection Act (EPPA)?
The Employee Polygraph Protection Act (EPPA) established guidelines for polygraph testing and imposed restrictions on most private employers. The Employee Polygraph Protection Act of 1988 (EPPA) generally prevents employers from using lie detector tests, either for pre-employment screening or during the course of employment, with certain exemptions. Employers generally may not require or request any employee or job applicant to take a lie detector test, or discharge, discipline, or discriminate against an employee or job applicant for refusing to take a test or for exercising other rights under the Act. In addition, employers are required to display the EPPA poster in the workplace for their employees.
Who is affected by EPPA?
The Employee Polygraph Protection Act (EPPA) applies to most private employers. The law does not cover federal, state, and local governments. Local, State and Federal governmental agencies (such as police departments) are not affected by the law, nor are public agencies, such as a school system or correctional institution.
In addition, there are exemptions in EPPA for some commercial businesses that have a high need for examinations to protect the public and our governement from indiciduals planning or engaged in deviant behavior. These are:
- Businesses under contract with the Federal Government involving specified activities (e.g., counterintelligence work).
- Businesses whose primary purpose consists of providing armored car personnel, personnel involved in the design, or security personnel in facilities which have a significant impact on the health or safety of any state. Examples of these facilities would be a nuclear or electric power plant, public water works, or toxic waste disposal.
- Companies which manufacturer, distribute or dispense controlled substances.
How does EPPA affect businesses which are not exempt?
In general, businesses cannot request, suggest or require any job applicant to take a pre-employment polygraph examination. Secondly, businesses can request a current employee to take a polygraph examination or suggest to such a person that a polygraph examination be taken, only when specific conditions have been satisfied. However, the employer cannot require current employees to take an examination, and if an employee refuses a request or suggestion, the employer cannot discipline or discharge the employee based on the refusal to submit to the examination.
When can my boss ask me to take a polygraph test?
The EPPA has four different "exemptions" under which private employers can give polygraph tests to their employees. Three of the exemptions deal with employers that are involved in national defense, security services, and controlled substances. The one exemption that is available to all private employers, and the one that you are likely to encounter, is called the "ongoing investigation" exemption. This exemption permits employers to ask, and give, polygraph tests to employees when they are investigating an economic loss, such as the theft of merchandise, missing money, etc.
Can my boss ask us to take a polygraph test if he has suffered an economic loss?
No. In order for your boss to legally ask you to take a polygraph test, he/she will have to show three things:
- that there in fact was an economic loss
- that you had access to the property or item that was lost
- that there is "reasonable suspicion" that you were involved in the economic loss. The incident must be an ongoing, specific investigation (filing a police report, etc).
Your boss has to satisfy all three conditions before you can be asked to take a polygraph test. Your boss has to provide you with a written statement about the economic loss, the access that you had, and why they have "reasonable suspicion" that you were involved in the "economic loss".
What if I take the polygraph test?
If you take the test, your boss must carefully follow the polygraph law and ensure that you are given all the information that the EPPA requires before, during, and after the test is given to you.
Can my boss fire me for refusing to take a polygraph test or for failing an examination?
No. Your boss cannot fire you only for refusing to take a polygraph test or failing it, unless your boss has "additional supporting evidence" that you were involved in the economic loss.
What happens if I am fired for failing the test, but my boss didn't follow the EPPA procedures?
Then your firing is illegal and you can sue your employer for violating the EPPA. The EPPA is a very strict law. If your boss fails to follow even one of the requirements of the law, then the "ongoing investigation"exemption is unavailable to your boss to justify the polygraph test and the whole test is illegal.
I want to know about any other thefts going on in my business and I don't want to discriminate against any one employee, so can I have all my employees tested?
As reasonable as it may sound to try and 'clean house' and discover all forms of employee theft, the Employee Polygraph Protection Act (EPPA) law does not allow for blanket polygraph testing. The law is quite clear that you can only test employees who had BOTH access to what was stolen AND for who you have established a 'reasonable suspicion' that they did in fact commit the theft.
The fewer employees tested, the more that trust is maintained. Guilty employees don't feel accused when asked to take a polygraph because they know they are guilty, however, when innocent employees are asked to take a polygraph test, they often feel slighted as though the boss doesn't trust them. The law actually does a good job of limiting suspicion to where it is needed and this helps maintain overall employee morale during the investigation.
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