are permitted to
request that employees submit to a polygraph exam under some specific
conditions, as provided for by Federal Law. There are two
types of exams typically used by
employers, the Specific
Loss Exam and the Pre-Employment Exam.
SPECIFIC LOSS EXAM
Questions must be limited to the specific loss only. The examiner is not
permitted to ask questions about losses other than those listed in the
Prior to 1988 many businesses required their prospective employees to take and
pass a polygraph test. Since these new laws were passed, only the following
businesses are permitted to request pre-employment polygraph exams-
PHARMACEUTICAL SALES OR
EMPLOYEE POLYGRAPH PROTECTION ACT OF 1988
Many GPN examiners
for EPPA exams
(see list of
for EPPA icon).
Act of 1988 (U.S.
be met for an
employee to take a polygraph exam, with severe penalties for violations. Please
complete the following check-list to insure compliance with the law or visit http://www.polygraph.org for
- Polygraph may be requested
by an employer of an
A specific issue
polygraph can only be requested by an employer of their employee
(using the Department of Labor definition of "employee").
A company does not
have legal standing to request a sub-contractor or employee of
another company to take a polygraph.
- Employer must have suffered a loss
Explanation: The employer must
have suffered a specific economic loss, either through theft,
vandalism, embezzlement, or other misappropriation of money or
property. The loss must have been suffered by the employer, not
a third party. For example, a cleaning service may not test its
employees regarding an alleged loss by a customer.
- Loss must be identifiable
Explanation: The loss suffered by the
employer must be specific and identifiable. General losses or
shrinkage do not qualify.
- Employee must have had
Explanation: The employee to be tested
must have had access to the missing/lost/damaged property.
- Employee must be suspected
Unless your company
falls under one of the exempted industries listed above, there
must be a "reasonable suspicion" that the employee was involved in
the loss. Access to the property alone is not sufficient to warrant
a polygraph request. This "reasonable suspicion" can be established
in many ways, including commission of similar acts in the past,
statements of witnesses, suspicious behavior, or other evidence
which increases the likelihood of the employee's involvement.
If the employer is having difficulty establishing reasonable suspicion, we can help by providing written exams that can be given to each employee, the results of which can be used to help establish reasonable suspicion (email us at firstname.lastname@example.org for details).
The employer may conduct an investigation (by in-house investigators
or an outside agency) which results in a conclusion of this "reasonable
suspicion" which may be used for the purpose of requesting a polygraph. This
prohibits the testing
of all the employees who had access to the property. Unfortunately,
the law prohibits testing of employees just to "clear" them from suspicion. If the
company is in one of the exempted industries, then "reasonable
suspicion" is not required.
- Schedule the exam
Explanation: Once the above requirements
have been met, the employer must contact a polygraph examiner
to tentatively schedule the exam or exams.
- Make request to employee
Explanation: The employer, having
met the above requirements, must make a request in writing asking
the employee to take the exam. We can provide a form for such
requests. CLICK HERE to
get the form. This request must advise the employee that the exam
is voluntary and that no action can be taken against him/her solely
for refusing to take it. The employee must also be advised of
the incident under investigation, the reason he/she is suspected
of involvement, his/her legal rights, and a number of other notifications
required under the law. The examiner is not permitted to ask about
losses other than those described in this document. This request
must also include the date, time and location of the scheduled
exam. This request must be presented to the employee at least
2 business days prior to the scheduled exam.
- Can not fire an employee
just for refusing to take
If the employee refuses
to take the exam, the employer may take no "adverse employment
action" against the employee as a result of this refusal. This
means the employee
can not be terminated,
demoted, or lose pay or position solely because of this refusal.
- Can not fire an employee
just for failing a polygraph
If an employee "fails" an
EPPA polygraph, the employer still may not take an "adverse employment
action" against the employee without additional supporting evidence
indicating the employee's
involvement in the
the "reasonable suspicion" of involvement originally required
for the exam is sometimes sufficient to qualify as this "additional
supporting evidence." We recommend consulting with an attorney
for more information. At the time such "adverse employment action" is
initiated, the employer
must provide the
employee with a copy of the polygraph report and charts relating
to this issue.
- Release of polygraph
report to employee when
action is taken
Explanation: An employer is under no obligation to provide the
employee with polygraph reports or materials if the employer intends
to take no action as a result of the exam.
- Employer must retain
form for 3 years
employer is required
to maintain the EPPA
request form (signed
by the employee)
for a minimum of
3 years following
the exam date.