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Employment Law Article:

Employee Polygraph Protection Act of 1998

You have been busted! The machine doesn't lie. It is a lie detector and you just failed the test. You are fired! Is this a familiar story to you?

Whoa. Not so fast there Employer. You just might be the one who gets busted. Employers and Employees (as well as prospective employees) should know their respective rights and obligations before the polygraph machine is ever turned on. That means they need to know about a little known statute that has been on the books for about twenty years. An employer who violates this statute is looking at a civil penalty of up to $10,000, plus the prospect of a civil lawsuit by the employee or prospective employee to recover damages plus attorney’s fees and court costs.

The statute broadly applies to the use of any electrical or mechanical device for the purpose of obtaining a diagnostic opinion about the honesty or dishonesty of a person. It applies broadly to any employer who is engaged in or affecting commerce or in the production of goods for commerce. It applies whether or not the employee or prospective employee took the test. Please click here to read the Employee Polygraph Protection Act of 1998 (in PDF format)

And by the way, if you are an employer, do you have the required notice about this statute posted conspicuously at your place of business?

If you are an employee, you may be entitled to equitable relief in addition to damages, which could include such things as reinstatement, employment (if you were unlawfully denied a job because of a violation of the statute), and promotion. Damages can include payment of lost wages and benefits.

There are exemptions under the statute for governmental employers, and when the testing is used by the federal government for national defense or national security purposes, and for FBI contractors. There are also exemptions for certain security services, and for certain drug security, drug theft, or drug diversion investigations.

But there is another exemption that can come into play in the private sector. This is a limited exemption for ongoing investigations where the requirements of the statute are satisfied. These requirements include that the investigation must involve economic loss or injury to the Employer such as theft, embezzlement, misappropriation, or an act of industrial espionage or sabotage, where the employee had access to the property in question, and the employer has a reasonable suspicion that the employee was involved in the incident or activity being investigated.

Under this latter exemption, however, the Employer must execute a statement and provide it to the person to be examined prior to the test. This statement must set forth with particularity the specific incident or activity that is being investigated and the basis for testing particular employees. It must be signed by a person other than the polygraph examiner who is legally authorized to bind the Employer. It must be retained by the Employer for at least three years.

At a minimum the required statement must identify the specific economic loss or injury to the business, must indicate that the Employee had access to the property that is the subject of the investigation, and must describe the basis of the employer’s reasonable suspicion that the Employee was involved in the incident or activity that is under investigation.

But even then, the latter exemption does not apply where an adverse employment action is taken based on the test results unless there is additional supporting evidence.

There is also an additional requirement that must be satisfied if an Employer is relying on the exemption for certain security services and the drug related exemption. The additional requirement is that the Employer cannot rely solely on the results of the polygraph test in making an adverse employment decision.

Do you have it now? Read on, because there is more. This is a very technical statute which is easy to violate.

The testing process is broken into four phases, and there are requirements for each phase. This part of the statute applies to three of the exemptions that are discussed above. Specifically, it applies to the limited exemption for ongoing investigations, and it applies to the security services and drug related exemptions. These four phases are discussed below.

First, for all phases of the test, the person being examined (the “Examinee”) must be allowed to terminate the test at any time. The Examinee must not be asked questions in a way that is designed to degrade or needlessly intrude on the Examinee. The Examinee cannot be asked questions about religious beliefs or affiliations, beliefs or opinions about racial matters, political beliefs or affiliations, any matter relating to sexual behavior, or beliefs, affiliations, opinions, or lawful activities regarding unions or labor organizations. In addition, the test cannot be given if there is sufficient written evidence by a physician that the Examinee is suffering from a medical or psychological condition or is undergoing treatment that might cause abnormal response during the actual testing phase.

Second, during the pretest phase, the prospective Examinee must be provided reasonable written notice of the date, time, and location of the test. The Examinee must be given written notice of his or her right to obtain and consult with legal counsel or an Employee representative before each phase of the test. The Examinee must be given written notice of the nature and characteristics of the tests and of the instruments involved. The Examinee must be informed in writing whether the testing area contains a two-way mirror, a camera, or any other device through which the test can be observed, as well as whether any other device (including any device for recording or monitoring the test) will be used, or that the Employer or the Examinee may (with mutual knowledge) make a recording of the test.

Still as part of the pretest phase, the Examinee must be read and must sign a written notice informing him or her of certain things which includes:

  • That the Examinee cannot be required to take the test as a condition of employment;
  • That any statement made during the test may constitute additional supporting evidence for the purposes of an adverse employment action;
  • What the limitations are that are imposed by the statute;
  • What the legal rights and remedies are that are available to the Examinee if the polygraph test is not conducted in accordance with the statute; and
  • What the legal rights and remedies of the Employer are under the statute.
  • And finally, still as part of the pretest phase, the Examinee must be given 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.

Third, during the actual testing phase, the examiner cannot ask the Examinee any relevant question during the test that was not presented in writing for review by the Examinee before the test.

Fourth, during the post-test phase, the employer cannot take any adverse employment action without first interviewing the Examinee further on the basis of the results of the test, and provide the Examinee with a written copy of any opinion or conclusion that is based on the results of the test along with a copy of the questions that were asked during the test.

There are other provisions in the statute that limit how and to who results of the test can be given. There is also a maximum and minimum duration for the tests. Under this latter provision, no more than five polygraph tests can be given by an examiner on a single calendar day, and each test must last for at least ninety minutes. Click here to read the full text of the Employee Polygraph Protection Act of 1998 (in PDF format).

Copyright 2014 By Lee Solomon

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