Employee Polygraph Protection Act

Procedures

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• Examiner Requirements

  1. The examiner must have a valid current license if required by the state in which the test is conducted and carry a minimum bond or liability insurance of $50,000.
  2. The examiner must observe all rights of the employees.
  3. The examiner shall conduct no examination of less than 90 minutes duration, nor conduct more than five tests in a calendar day that are subject to the provisions of EPPA.
  4. The examiner shall render all opinions regarding truthfulness or deception in writing. The conclusions must be based solely on the polygraph results. The report shall not contain any information other than admissions, information, case facts, and the interpretation of the polygraph charts. The report shall not contain any recommendation concerning the employment of the examinee.
  5. The examiner shall maintain all records from the polygraph examination for a minimum of three years from the date of the examination.
  6. The examiner shall provide all records of the polygraph examination to the employer commissioning the examination if requested by the employer.

• Examination Procedures

  1. The employer must provide the employee with written notice at least 48 hours (excluding weekends and holidays) which meets the following requirements:
  • Advises the examinee of the date, time, and location of the examination
  • Advises the examinee of the right to consult with counsel or an employee representative prior to each phase of the examination, however, the attorney or representative may be excluded from the actual test;
  • Must set for the time and date of receipt by the employee, and be signed by the employee
  2. The employee must be informed during the pretest orally and in writing of the nature and characteristics of the polygraph instrumentation and examination, including an explanation of the physical operation of the polygraph and the procedure used during the examination.
  3. Before any testing, the employee must be provided with a written notice which will be read to and signed by the employee. This notice must contain at least the following information:
  • Whether or not the examination room contains any observation or recording device;
  • That both the employer and the employee have the right, with the other’s knowledge, to record the entire examination;
  • That the employee has the right to terminate the examination at any time;
  • That the employee has the right, and will be given the opportunity to review all questions to be asked during the test;
  • That the employee will not be asked questions that degrades or needlessly intrudes;
  • That the employee may not be asked any questions concerning religion, racial matters, political beliefs or affiliations, sexual behavior, or lawful activities regarding unions or labor organizations;
  • That the test cannot be required as a condition of employment;
  • That the test cannot be conducted if there is sufficient written evidence from a physician that the examinee is suffering from a medical or psychological condition or undergoing treatment that might cause abnormal responses during the examination;
  • That the employer cannot take any adverse employment action based solely on the results of the test or the employee’s refusal to take the test without additional evidence that would support such action, such as those facts that established the original reasonable suspicion;
  • That any statement made by the examinee during the course of the examination may serve as additional supporting evidence for adverse employment action;
  • That any admission of criminal conduct by the examinee may be provided to appropriate government agencies;
  • That the information obtained during the polygraph may be disclosed by the examiner or employer only to the examinee or their designated agent when requested in writing, the employer requesting the examination, a court or governmental agency pursuant to a court order, or without a court order if evidence of criminal violations exist;
  • That if any of the examinee’s rights or protections are violated, the examinee has the right to file a complaint with the Wage and Hour Division of the Department of Labor or an appropriate court;
  • That the examinee has the right to consult with counsel or an employee representative prior to each phase of the examination, however the attorney or representative may be excluded from the actual test;
  • That the employee’s rights under the Act may not be waived, either voluntarily or involuntarily.
  4. The examinee must be provided with the opportunity to explain any responses recorded during the polygraph examination.

• Ongoing Examinations Checklist

  The following is a checklist to help users determine compliance with the requirements of EPPA. It may be photocopied for personal, noncommercial use. For further information, seek professional legal counsel, or contact the U.S. Department of Labor.

  Before the Examination

  1. Advise the employer of the basic provisions of the EPPA Law.
  2. Determine from the employer whether an economic loss to his or her company has occurred, and if any investigation has been done to identify the suspect.
  3. Can the employer articulate to you why there is reasonable suspicion to believe that the potential examinee was involved in the economic loss?
  4. Has the employer provided the proper notification to the potential examinee at least 48 hours prior to the examination?
  5. If any serious questions exist concerning the proposed examination, contact the local office of the U.S. Department of Labor, Wage and Hour Division.

  During the Examination

  1. Provide the examinee with an oral and written explanation of the nature and characteristics of the polygraph instrumentation and the examination procedures.
  2. Provide a properly formatted consent form, which will be signed by the examinee.
  3. Thoroughly review all questions with the examinee prior to testing.
  4. Ensure all relevant questions pertain to the investigation.
  5. Allow the examinee to explain all responses to the relevant questions.
  6. Ensure that the testing period is at least 90 minutes long.

  After the Examination

  1. Provide the employer with a written report in which any opinion or conclusion concerning truthfulness or deception is rendered.
  2. Do not make any recommendations concerning the employment of the examinee.
  3. Do not conduct more than five EPPA related tests in a calendar day.
  4. Maintain all test records and documents for three years.
  5. Do not disclose the results of the examination except as authorized by this law.