Employee Polygraph Protection Act: Everything You Need to Know

The Employee Polygraph Protection Act was signed by President Reagan in 1988 and established the rules for the administration of polygraph tests. These are a set of restrictions that apply to private employees unless exemptions exist.

Employee Polygraph Protection Act of 1988

Employers who administer polygraph tests to their employees are restricted in their use by the Employee Polygraph Protection Act. Enforcement falls to the DOL (Department of Labor). Generally, the act keeps employers from using polygraph tests for screening (prior to employment) or during employment. There are exceptions. Similar devices to a polygraph are prohibited by the Act. Things like the deceptograph, psychological stress analyzer, voice stress evaluator, or any mechanical device used to make diagnosis as to the dishonesty or honesty of an employee or potential employee. These lie detectors are electrical or mechanical devices that record various changes in physical changes to make a diagnostic determination about the genuineness of someone. The physical changes can be electrodermal patterns, respiratory, and cardiovascular.

Who Is Affected by the Employee Polygraph Protection Act?

The Employee Polygraph Protection Act affects private businesses. Unaffected by the law are state, local, and federal government agencies. It’s obvious why these exceptions are necessary for police departments, school districts, and prison systems.

Exemptions in Employee Polygraph Protection Act:

• Qualified businesses who are under contract with the government for specified activities like intelligence work.
• Armored car personnel, nuclear facility workers, power plant employees, toxic waste disposal professionals, security officers, or any other employee whose job has significant impact on health or safety of the community.
• The manufacturer, distribution or dispensing of controlled substances also makes the company exempt.

Polygraph tests, in general, are not allowed to be required, suggested, or requested by an employer or potential employer. If specific criteria are met, then a business can insist that a polygraph test be administered. Unless the conditions are satisfied, an employer cannot threaten employees with discharge or disciplinary action unless the polygraph is taken.

Criteria an Employer Is Required to Meet to Do Polygraph Testing

The Employer checklist:

• The episode must be part of a specific and ongoing investigation.
• The result of the event must be economic loss.
• The employer must have knowledge of the Employer Polygraph Protection Act.
• The employer must give the employee a document.
• The document MUST have signature of someone authorized to legally represent the employee, and MUST be engaged by employer for three years and is not the examiner.
• The Notice to Examinee must be read aloud to the employee, which should be witnessed, signed and dated.
• Provide the employee with advanced notice (at least 48 hours).
• Provide the employee with documented notice of the time, date, and location of the examination, including directions to the location where it is to be conducted.
• The employer must maintain a statement of adverse actions taken against the employee after a polygraph test.
• Conduct additional interviews of the employee prior to any adverse action after a polygraph test.
• Maintain records for a minimum of three years of all documents above.
• Employees are not able to waive their rights.
• Police and investigators are not allowed to share the results of their polygraph and employers are not allowed use or inquire about the results of the polygraph.
• Violation of the law results in a ten-thousand dollar penalty for EACH individual violation of the law.
• Ensure the credentials of the polygraph examiner. Ask for documentation of liability insurance, licensing, etc.
• Company letterhead should be used on all forms provided to the employee. A corporate attorney should review actions to assure compliance with the Employee Polygraph Protection Act.

Checklist for the Polygraph Examiner:

• Give the employer a photocopy of Employee Polygraph Protection Act guidelines.
• The examiner cannot assist the employer to determine who should be tested.
• Ensure that there is a signed statement of advance notice provided to the employee.
• Give employee a written clarification of the polygraph test and procedures. Employee should sign it and date it.
• Read aloud, answer questions and explain the rights to the employee. Have it signed, timed and dated.

• Advise the employee of taping and one-way mirrors.
• Be insured for $50,000 or equivalent professional liability coverage.
• Conduct no more than five polygraph tests per day.
• Do not administer any polygraph that requires fewer than 90 minutes.
• Give the employee the polygraph test questions in writing. Then have the examinee write out their replies and sign the question sheet.
• Be licensed, if so required, in the state where the test is to be conducted.
• Log the company name, employee name, date and times for all polygraph tests during the course of a day.
• Share the results of the test with the employee and allow them an opportunity to explain any reactions.
• Provide opinion of non-deception or deception in writing.
• Results must NOT be based on behavior but only be based on the polygraph test results.
• Only provide information relevant to the original purpose of the test to the employer.
• Keep photocopies of ALL documents for a minimum of three years.
• Give a photocopy of documents to the employee upon request.
• Give a photocopy of documents to the employer when results are deceptive.
• Give the Department of Labor with copies of the same, within 72 hours, at the request of the Secretary of Department of Labor, or other authorized person of Department of Labor.

Prohibitions on the Use of Lie Detectors

Employers are not allowed to suggest, request, or require that an employee or potential employee take any kind of polygraph (or lie detector) examination. In addition, an employer is not allowed to inquire about the results, use, refer to, or accept the results of the test. This means that an employer cannot promote, threaten, discipline, discriminate against, discharge, deny employment or threaten any of those actions against a potential employee or a current employee.

Employee Polygraph Protection Act of 1988 Exemptions

Employers who administer polygraph tests to their employees are restricted in their use by the Employee Polygraph Protection Act. Enforcement falls to the DOL (Department of Labor). Generally, the act keeps employers from using polygraph tests for screening (prior to employment) or during employment. There are exceptions. Similar devices to a polygraph are also prohibited by the Act. Things like the deceptograph, psychological stress analyzer, voice stress evaluator, or any mechanical device used to make diagnosis as to the dishonesty or honesty of an employee or potential employee. These lie detectors are electrical or mechanical devices that records various changes in physical changes to make a diagnostic determination about the genuineness of someone. The physical changes can be electrodermal patterns, respiratory, and cardiovascular.

Qualified Examiners

Within 45 days of the discriminatory (alleged) action, a federal job applicant or employee must file a complaint of discrimination based on color, race, sex, national origin, age, religion, or mental or physical disability to an EEO counselor with the applicants’ or employees’ agency. The applicant or employee may file a formal complaint within 15 days of getting notice of the right to file a complaint if that complaint cannot be solved informally.

Under 1967’s Age Discrimination in Employment Act, a complaint against federal agencies or departments are required to be filed with the director of equal employment opportunity, head of that agency, head of an Equal Employment Opportunity Commission (EEOC) field office, or other official (designated by the agency). This requirement may be skipped by federal employees if they notify the EEOC within 180 days of the discrimination, and then wait 30 days before filing a suit.

Restricted Use of Exemptions

Data on the employment status of members of minority groups and women are published by the EEOC. The EEOC collects information through six employment surveys. The surveys cover apprenticeship programs, private employers, state and local governments, labor unions, secondary and elementary schools, and Colleges and Universities. The agency then tabulates data on employees' racial, ethnic, and gender statistics. The product is then distributed to federal agencies who, in turn, make it available to the community.

Rights of Employee or Examinee

Due to the stifling nature of retaliation on employees who may not want to come forward and disclose what they know during investigations if they think it will cost them something, the EEOC has cracked down on this phenomenon. Retaliation can vary from unlawful discharge (for example a Human Resources professional who is performing EEO functions, terminated for it) to assorted other adverse actions. If proven, these charges can result in both compensatory and punitive damages against the employer. Equal Employment Opportunity Commission (EEOC) guidance takes an assertive stance against retaliation, using a broad interpretation of this frequently complained type of discrimination.

Retaliation charges have eclipsed race discrimination since 2009. Now the most common basis for a filing of discrimination charge is retaliation. Nearly 43 percent of all private-sector complaints filed in 2014 involved retaliation claims. That is two times as many as 1998, which was when the EEOC last issued retaliation guidance.

Authority of Secretary

The Secretary of Labor is must print, and distribute notice of the Act's safeties, to provide rules and regs to protect the conditions of the Act. Every employer shall maintain and post notice in obvious spots on its grounds where notices are usually posted. For more information about the Secretary of Labor go here.

The Secretary shall:

• issue regulations as necessary or appropriate to enforce this Act
• coordinate with local, regional, local, State, and other agencies, furnish specific assistance to private employers, employment agencies, and labor organizations, effectuating the purposes of this Act
• make investigations and inquiries and require the keeping of documentation necessary or appropriate for the administration of this Act

Civil Penalties

The Equal Employment Opportunity Commission guidance stated that opposition safeguards all employees, including managers and those in Human Resources. Protected opposition examples include complaining about discrimination against others or themselves, counseling an employer on EEO compliance, such as Human Resources reporting violations to leadership, or threatening to complain, reporting evidence in an employer’s internal inquiry of an EEO matter, repelling sexual advances or interceding on behalf of others, declining to comply with an order “reasonably” understood to be discriminatory, passive resistance, for example if a supervisor deciding to not carry out a manager’s direction to put a damper on subordinates filing complaints about discrimination, and asking for reasonable accommodations for religious reasons or a disability . Punishment for discussing pay may i EEO laws and the NLRA (National Labor Relations Act). That issue may not be on employer’s radar. Some of the guidance’s examples of protected opposition reflect newer EEOC positions. For example, if an employee believes she is being hassled by colleagues based on her sexual orientation and files a complaint with HR or her manager and human resources. Another example, if an employee believes she is being harassed by colleagues based on her gender and complains to her HR department or her manager and human resources. Protected opposition applies because Title VII [of the Civil Rights Act of 1964 because the EEOC’s stated position and prosecution efforts, individuals may have a reasonable belief that this type of sexual orientation discrimination is illegal as a form of sex discrimination under Title VII. In defending itself from any number of types of retaliation claims, it’s chiefly important for an employer to show consistent enforcement of rules and for any discipline to be well-documented. It’s important that an employer has a handbook that reflects this.

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