1 Bender on Privacy and Data Protection § 10.06 (2020)
The Employee Polygraph Protection Act of 1988 is designed to protect the majority of employees who work for private enterprise from being subject to “lie detector” tests for employment applicant screening, or during the course of employment. The statute does not apply to federal, state or local government, nor to tests administered by the federal government to certain individuals engaged in conduct related to national security.
Subject to exceptions, the statute
1 renders it unlawful for an employer engaged in or affecting commerce:
(1) directly or indirectly, to require, request, suggest, or cause any employee or prospective employee to take or submit to any lie detector
2 test;
(2) to use, accept, refer to, or inquire concerning the results of any lie detector test of any employee or prospective employee;
(3) to discharge, discipline, discriminate against, or deny employment or promotion to, or threaten to take any such action against—
(A) an employee or prospective employee who declines to take any lie detector test, or
(B) an employee or prospective employee on the basis of the results of any lie detector test; or
(4) to discharge, discipline, discriminate against, or deny employment or promotion to, or threaten same against any employee or prospective employee because—
(A) he or she filed a complaint or instituted a proceeding under or related to this statute,
(B) he or she testified or is about to testify in any such proceeding, or
(C) of the exercise by him or her, on behalf of him or her or another person, of any right afforded by this statute.
However, the statute
3 does not prohibit an employer from requesting an employee to submit to a polygraph test if—
(1) it is administered in connection with an ongoing investigation involving economic loss to the business;
(2) the employee had access to the property that is the subject of the investigation;
(3) the employer has a reasonable suspicion that the employee was involved in the incident; and
(4) the employer executes a statement, provided to the examinee before the test, that—
(A) sets forth with particularity the specific incident being investigated and the basis for testing particular employees,
(B) is signed by a person authorized to legally bind the employer,
(C) is retained by the employer for at least 3 years, and
(D) contains at least—
(i) an identification of the specific economic loss to the business,
(ii) a statement indicating that the employee had access to the subject property, and
(iii) a statement describing the basis of the employer’s reasonable suspicion that the employee was involved in the incident.
Actual use of a lie detector is not necessary for a violation. In
Campbell v. Woodward,
4 plaintiff was an employee of the defendant, a photography business. A string of thefts occurred at the business, and the owners informed the staff they would investigate, and allegedly stated they would employ a polygraph. Defendant hired a third party to investigate. As a result of facts turned up in the investigation, defendant fired plaintiff and reported the results of the investigation to the police. Plaintiff sued for violation of the EPPA, alleging that defendant told employees they would have to take a polygraph test. The court noted that the statute stated that an employer may not “directly or indirectly, require, request, suggest, or cause any employee or prospective employee to take or submit to any lie detector test.”
5 Thus, an employer need not actually administer a test to violate the statute, and the court held that plaintiff had made out a
prima facie case.
Defendant claimed that any potential use of the polygraph tests occurred during an investigation, as permitted by
29 U.S.C. § 2006(d). But the court noted that
29 U.S.C. § 2006(d)(3) requires that the employer have a “reasonable suspicion.” Reasonable suspicion is defined as “an observable, articulable, basis in fact which indicates that a particular employee was involved, or responsible for, an economic loss.”
6 At the time defendant made the statement here, defendant had no particularized suspicions whatever. Thus, the statutory defense was not available to it, and summary judgment in its favor was denied.
Other exceptions permit using a polygraph
7 under certain conditions for (i) applicants of security service firms and manufacturers and distributors of controlled substances, and (ii) certain employees of private firms who are reasonably suspected of workplace conduct resulting in economic loss to the employer. Persons who are required to take such tests have rights regarding conduct and duration, written notice before testing, the right to decline or discontinue, and the right to restrict disclosure of results to authorized persons. Before any adverse employment action, the employer is required to provide the employee with a copy of the questions asked, a copy of the chart indicating the employee’s reaction, and a copy of any opinion of conclusion based on the test. The examiner may disclose the results only to the examinee, the employer, and otherwise as required by law. Except where national security or certain FBI investigations are involved, the employer may disclose results only to these same discloses plus any governmental agency to the extent the information is an admission of criminal conduct.
The statute also sets out minimum requirements for examiners who administer such tests. Employers are required to post summaries of the statue conspicuously. This statute does not preempt state law or collective bargaining agreements that are more restrictive. The Department of Labor may bring an action seeking injunctive relief and a penalty of up to $10,000. Any employee affected may sue the employer, and relief may include without limitation employment reinstatement, promotion, payment of lost wages and benefits, attorney fees and costs. The rights created under this statue may not be waived except in a consent order terminating an action.
The Department of Labor has released regulations pursuant to this statute at
29 C.F.R. Part 801.
Footnotes — § 10.06:
2 “Lie detector” includes “a polygraph, deceptograph, voice stress analyzer, psychological stress evaluator, or any similar device (whether mechanical or electrical) that is used, or the results of which are used, for the purpose of rendering diagnostic opinion regarding the honesty or dishonesty of an individual.”
29 U.S.C. § 2001(3).
7 A “polygraph” is “an instrument that—(A) records continually, visually, permanently, and simultaneously changes in cardiovascular, respiratory, and electrodermal patterns as minimum instrumentation standards; and (B) is used, or the results of which are used, for the purpose of rendering a diagnostic opinion regarding the honesty or dishonesty of an individual.”
29 U.S.C. § 2001(4).