It is a Violation of Federal Law for an Employer to Require an Employee to take a Polygraph…No Lie!

It is a Violation of Federal Law for an Employer to Require an Employee to take a Polygraph…No Lie!

August 29, 2017

By Eric G. Marttila

Nearly 30 years ago, on June 27, 1988, President Ronald Reagan signed the Employee Polygraph Protection Act (EPPA or Act).  The Senate Report, which led to the law’s enactment, indicated 1) that the American Medical Association had concluded that, statistically, polygraphs can provide accurate evidence of deception or dishonesty in people only somewhat better than chance; and 2) that a minimum of 400,000 honest workers were then being wrongfully labeled deceptive and suffering adverse employment consequences each year.  In order to minimize the chances for such wrongful adverse employment actions, Congress passed – and President Reagan signed – the EPPA into law.

As used in the Act [the EPPA is found at 29 USCS §§ 2001 et seq.], the term "employer" includes any person acting directly or indirectly in the interest of an employer in relation to an employee or prospective employee. The term "lie detector" includes a polygraph -- or any other similar device -- that is used, or the results of which are used, for the purpose of rendering a diagnostic opinion regarding the honesty or dishonesty of an individual.

The Act enumerates the following prohibitions on lie detector use, with certain very limited exceptions:

. . . it shall be unlawful for any employer engaged in or affecting commerce or in the production of goods for commerce—

  1. directly or indirectly, to require, request, suggest, or cause any employee or prospective employee to take or submit to any lie detector test;
  2. to use, accept, refer to, or inquire concerning the results of any lie detector test of any employee or prospective employee;
  3. to discharge, discipline, discriminate against in any manner, or deny employment or promotion to, or threaten to take any such action against—
    • any employee or prospective employee who refuses, declines, or fails to take or submit to any lie detector test, or
    • any employee or prospective employee on the basis of the results of any lie detector test . . .

Where an employer violates the Act, private civil actions for those violations are authorized.  Such an employer shall be held liable to the employee or prospective employee for such legal or equitable relief as may be appropriate -- including, but not limited to, employment, reinstatement, promotion, and the payment of any lost wages and benefits.  Such an action to recover damages may be maintained against the employer in any Federal or State court, but must be commenced no more than 3 years after the date of the alleged violation.  Additionally, the court, in its discretion, may allow the prevailing party reasonable costs, including attorney's fees.

However, as stated, the Act does provide certain limited “exemptions” or exceptions to the applicability of the prohibitions, including one for “ongoing investigations.” The EPPA does not prohibit an employer from requesting an employee to submit to a polygraph test if 1) the test is administered in connection with an ongoing investigation involving economic loss or injury to the employer's business -- such as theft, embezzlement, or misappropriation; 2) the employee had access to the property that is the subject of the investigation; 3) the employer has a reasonable suspicion that the employee was involved in the incident or activity under investigation; and 4) the employer executes a statement, provided to the examinee before the test, that, among other things, provides particular details regarding the specific incident or activity being investigated, and sets forth the basis for testing that employee.

Of course, the aforementioned “limited exemption” is, by definition, limited.  By its very clear terms, it does not relieve the employer from any of the other enumerated requirements of the Act.  For example, there is not an unlimited exemption with respect to an employer’s use, acceptance, reference to, or inquiry concerning, the results of a lie detector test.  Similarly, there is not an exemption for an employer’s threatening to discharge an employee should he refuse, decline, or fail to take a lie detector test.

Furthermore, and quite significantly, the Act places stringent restrictions on the use of such exemptions.  It requires that, during the pretest phase, the employee or prospective employee be provided with reasonable written notice of the date, time, and location of the test, as well as of his or her right to obtain and consult with legal counsel or an employee representative before each phase of the test; be informed in writing of the nature and characteristics of the tests; and be informed, in writing as to whether any cameras or other devices for observation will be used and whether any additional recording or monitoring of the test will take place.

Importantly, an employee or prospective employee must be read – and must sign -- a written notice that he or she cannot be required to take the test as a condition of employment; must be provided an opportunity to review all questions to be asked during the test and be informed of the right to terminate the test at any time; and must be advised of his or her legal rights and remedies if the polygraph is not conducted in strict accordance with the Act.  The Act also imposes very specific requirements with respect to the qualifications, and other professional obligations, of the prospective polygraph examiner.  Finally, the Act prohibits the disclosure of information obtained during a polygraph examination.  Generally speaking, a person, other than the employee or prospective employee, may not disclose information obtained during a polygraph test except under limited circumstances.

With regard to those “exemptions” from the Act, therefore, Congress created a limited exemption for an ongoing investigation of an employee's theft. It was the legislative intent that this exemption be narrowly construed and subject to careful restrictions and conditions. Thus, the employer seeking application of any "ongoing investigation" exemption in implementing a polygraph test must provide the tested employee with the procedural safeguards specified. What is clear is that, even under those circumstances, if the employer fails to provide the required information in order to qualify for the exemption, it cannot find safe haven from liability – and exposes itself to civil liability.

Accordingly, employers need to know their obligations under the law -- and employees need to know what their rights are when confronted with such an uncomfortable situation.

If you have any questions, please contact Eric G. Marttila at 215-345-8888 or via email at emarttila@highswartz.com.

The information above is general: we recommend that you consult an attorney regarding your specific circumstances.  The content of this information is not meant to be considered as legal advice or a substitute for legal representation.

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