Employers in the United States 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 notification form.
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:
- SECURITY COMPANIES
- PHARMACEUTICAL SALES OR TRANSPORTATION COMPANIES
- POWER GENERATING COMPANIES
- LAW ENFORCEMENT AGENCIES
- OTHER GOVERNMENT AGENCIES
THE EMPLOYEE POLYGRAPH PROTECTION ACT OF 1988
Many GPN examiners are available for EPPA exams (see list of testing locations for EPPA icon). The Employee Polygraph Protection Act of 1988 (U.S. federal law) establishes that certain requirements 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.
*Click on the highlighted items below for more details.
If an employer wishes to have one or more employees submit to specific issue polygraph testing, this is permissible under certain circumstances (see below). The term “employee” is defined by the U.S. Department of Labor. A subcontractor may or not be considered an “employee” depending on the DOL definition. Subcontractors can be asked to take a polygraph without regard to the federal regulations, and this check list does not apply.
A few states prohibit testing of employees under any circumstances. If State Law prohibits employee testing, this law takes priority over Federal Law, and testing of employees is not permitted.
The employer must have suffered a specific economic loss, either through theft, vandalism, embezzlement, or other misappropriation of money or property. The loss may have been suffered directly by the employer, or by a third party where the employee had responsibility for or authority over that missing property. For example, a trucker who was hired by his company to move someone’s belongings can be tested regarding the loss of those belongings because he had exclusive control over that property. However, a hotel housekeeper can NOT be tested for the alleged loss of a guest’s belongings because that employee did not have authority over or responsibility for the missing property.
The loss suffered by the employer must be specific and identifiable. General losses or shrinkage do not qualify.
The employee to be tested must have had access to the missing/lost/damaged property.
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 requirement typically 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 listed above, then “reasonable suspicion” is not required (only access).
Once the above requirements have been met, the employer must contact a polygraph examiner to tentatively schedule the exam or exams.
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.
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.
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 loss. However, 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.
If the employer intends to take any “adverse action” against an employee who has failed a polygraph, the employer must provide the employee with a copy of the examination report and other materials. An employer is under no obligation to provide the employee with polygraph reports or materials if the employer does NOT intend to take action as a result of the exam.
The employer is required to maintain the EPPA request form (signed by the employee) for a minimum of 3 years following the exam date.