In general, businesses cannot request, suggest or require any job applicant to take a pre-employment polygraph examination. Secondly, businesses can request a current employee to take a polygraph examination or suggest to such a person that a polygraph examination be taken, only when specific conditions have been satisfied. However, the employer cannot require current employees to take an examination, and if an employee refuses a request or suggestion, the employer cannot discipline or discharge the employee based on the refusal.
Here are the rules governing polygraph testing:
- The incident must be an ongoing, specific investigation.
- It must be an identifiable economic loss to the employer.
- Obtain a copy of the Employer Polygraph Protection Act of 1988 (EPPA) and follow it.
- Provide the employee with a written statement that includes:
- Identification of the company and location of employee.
- Description of the loss or activity under investigation.
- Location of the loss.
- Specific amount of the loss.
- Type of economic loss.
- How the employee had access to the loss (note: access alone is not sufficient grounds for polygraph testing).
- Reasonable suspicion the person to be tested is believed to be involved in the loss.
- The statement provided to the employee MUST be signed by someone other than the polygraph examiner and who is authorized to legally bind the employee, and MUST be a person retained by the employer for at least 3 years.
- Read to the employee the Notice to Examinee form. The notice should be acknowledged by the employee, signed, timed, dated and witnessed.
- Provide the employee with 48 hours advanced notice (not counting weekends or holidays) to the date and time of the scheduled polygraph test.
- Provide the employee with written notice of the date, time and location of the polygraph test, including written directions if the test is to be conducted at a location other than at the place of employment.
- If adverse action is taken following a polygraph test, give to the employee a statement of adverse actions and why10. Conduct an additional interview of the employee prior to any adverse action taken employee following a polygraph test.
- Maintain records of ALL of the above for a minimum of 3 year
- Employees may not waive their rights.
- Police and private investigators are not exempt and must comply if they are conducting an employment-related polygraph test, e.g., when conducting a polygraph test on an internal theft for a missing deposit. Information about a polygraph provided to the employer by a police officer or investigator is prohibited under the Act, since employers are not allowed to use, accept or inquire about the results.
- Use company letterhead on all forms provided to the examinee.
There is a $10,000 penalty for each violation of the law. This underscores the need for the operator of a private investigation agency to check out the credentials of the polygraph examiner that used and verify that the examiner meets EPPA requirements. Ask for written proof of licensing, liability insurance, etc.
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