Lie Detectors at Work
By Richard M. Klein, Esq.
Column #195; April 15, 2005
If you are thinking about using “lie-detector” equipment at
your work place, you had better be aware of a federal law that limits
this practice and that has virtually eliminated pre-1988 widespread
use of polygraph examinations by private employers.
The federal “Employee Polygraph Protection Act of 1988” (“EPPA”) prohibits
polygraph (“lie-detector”) testing of applicants for employment. Further,
EPPA generally limits polygraph testing of employees to situations when
an employer has a “reasonable” belief that a specific employee may have
been involved in theft of the employer’s property. For example, it would
be illegal for a restaurant employer to test all employees to determine
if one of them had stolen money missing from a cash register.
Anyone who believes that their rights under the EPPA were violated may
consult an attorney for advice and possible court action and/or file
a written complaint against the employer at a USDOL (“United States
Department of Labor”) office. The USDOL will investigate the complaint
to determine if EPPA rights were violated. If there is sufficient evidence
to prove a violation of the EPPA, the USDOL will attempt to negotiate
a settlement of the complaint with relief for the victim of the violation
or impose civil penalties or file a lawsuit against the employer.
The protection provided by the EPPA may not be waived or lost by contract
or otherwise, unless the waiver is part of a written settlement of a
complaint or court action under the EPPA.
Before testing an employee, the employer must give the employee a signed,
written statement explaining the incident being investigated, the specific
injury to the employer, the employee’s access to the missing property
and the basis for the employer’s reasonable suspicion that the employee
was involved in the incident under investigation. Employers cannot discipline
or discharge employees based solely on the results of the polygraph
test and must have additional evidence to discipline or discharge the
employee who is tested.
Employees being tested have various rights, including the following:
(1) being given reasonable written notice of the date, time and location
of the testing, and the right to consult an attorney; (2) being given
a written explanation of the testing process; (3) being told whether
the testing area will have two-way mirrors, cameras or similar devices
to watch the person being tested; (4) reviewing all test questions before
they are asked; (5) not being asked degrading questions or questions
regarding religion, race, politics, sexual behavior and unions or labor
organizations; (6) not being tested if there is medical evidence that
the testing may cause abnormal responses; (7) stopping the test at any
time; and (8) receiving a written copy of the test results.
Employers who violate any part of the EPPA are subject to: (1) civil
penalties of not more than $10,000; (2) court actions by the USDOL to
require compliance with the EPPA and provide relief for any violations;
and (3) private civil actions in federal or state court by employees
or prospective employees for legal or equitable relief including, but
not limited to, employment, reinstatement, promotion, payment of loss
wages and benefits, and attorney fees.
Keep in mind that EPPA defines “lie-detector” to include various mechanical
and electrical devices and “employer” to include employers engaged in
interstate commerce.
The EPPA does not apply to federal, state or local government and certain
employees involved in law enforcement and security work. It also has
an “ongoing investigation” exemption, which allows employers to require
employees to submit to polygraph tests as part of an ongoing investigation
involving economic loss or injury to the employer’s business, such as
theft of money or business secrets. However, be aware that the employer
may only test employees who had access to the missing property and whom
the employer reasonably suspects of involvement in the incident under
investigation.
Anyone who has questions about the EPPA may contact an office of the
Wage and Hour Division of the United States Department of Labor (“USDOL”)
for more information.
Richard M. Klein is a senior managing attorney in Legal Aid of North
Carolina’s Wilmington office and serves as co-chair of the Legal Aid
Employment Law Task Force. “The Law and You” is a regular publication
of Legal Aid of North Carolina, a nonprofit program that provides free civil legal
assistance to poor and low-income residents of North Carolina.
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