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Questions about Employee Polygraph Protection Act (EPPA)

The Employee Polygraph Protection Act (EPPA) permits consensual polygraph testing of employees as part of an "ongoing investigation involving economic loss or injury to the employer's business". In order to test an employee(s), the employee(s) must have been able to access the area or objects in question, and the employer must have reasonable suspicion the employee or employees is or are involved in the loss or injury. Also, the EPPA prohibits any use of polygraph tests by private employers in hiring and firing people, which means Federal, State, and local government employees are not exempt.

Below are some of the top questions related laws under the EPPA answered by legal experts.

A colleague in California was suspected of thieving and subjected to a polygraph test by the manager. Is this a violation of state or federal law? Can the colleague sue? Would punitive damages be awarded?

Under the EPPA, the employer cannot ask the employee to waive his or her rights. Depending on the situation, the employee may be able to sue in state or federal court for legal and equitable relief for violations of the EPPA as long as he or she does so within three years of the date of the violation. Each violation can potentially result in a $10,000 penalty by the Secretary of Labor, plus an injunction against future actions. The employee may be able to claim back wages and lost benefits as well as punitive damages for defamation/slander as a result of disclosure of information of the polygraph test to potential employers.

In Illinois can I require a current employee to take a polygraph to remain employed?

You may not test your employee as a condition of employment. The EPPA prohibits private employers from using polygraph tests for hiring and firing employees. Per the Act, private employers are, however, permitted to conduct polygraph tests under limited exemptions, including:
  1. reasonable suspicion of an employee’s involvement in a workplace incident that resulted in economic loss where the employee had access to the property or person under investigation; or
  2. prospective employees who protect facilities, materials or operations affecting health or safety, national security, or currency and other like instruments; or
  3. prospective and employees of pharmaceutical and other firms authorized to manufacture, distribute, or dispense controlled substances who will have direct access to such controlled substances.
You can learn more about the EPPA by reading the full act here. http://www.dol.gov/whd/regs/statutes/poly01.pdf

Can an employee be asked to take the polygraph test for a verbal dispute even when there’s no theft, embezzlement, or misappropriation involved?

The statute prohibits private employers from requiring employees to submit to lie detectors unless there is loss or injury related to conduct “such as theft, embezzlement, misappropriation, or an act of unlawful industrial espionage or sabotage”. In this particular case, as in all cases, whether or not fraud, economic loss, or economic injury occurs is an issue to be determined by the court.

As a detention officer, I have been accused of supplying inmates with drugs and am now being asked to take a polygraph test. What should I do?

Only private employees are protected by the statute from undergoing polygraph tests. Law enforcement employees can be required to take polygraph examinations under both federal and state law. As a detention officer, you would be considered a law enforcement employee of the government. This publication explains the federal law.

As an examinee, you have specific rights including the right to a written notice before testing, the right to refuse or discontinue a test, and the right not to have test results disclosed to unauthorized persons.

My employer is asking me to take a polygraph test. Nothing other than the result of the polygraph test would be available as evidence against me. Is this legal in Illinois?

Under the EPPA, a private employer may require an employee to undergo a polygraph test only in the case of an economic loss investigation. The employee cannot be fired for refusing the test, nor can the employer allude to the test or reason for quitting in the employee’s future job references. In criminal charges, the polygraph wouldn't be admissible.

The EPPA regulations give examples of what justifies testing. Offenses that do not cause economic loss to the employer such as drug sales on employer property or theft from employee lockers cannot be grounds for testing. This is why routine inventory or cash register shortages normally do not qualify. Losses caused by accidents, also known as unintentional conduct, would not be grounds for testing. If you have doubts or questions regarding the EPPA, speak to a legal expert.
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