Lie Detector Tests: The Employee Polygraph Protection Act of 1988
Since their creation in 1921, polygraphs have been used by many people in many situations. While they can be used to help determine whether or not someone is being truthful, there are limits to how polygraph test can be used in a private workplace. To protect employees from unnecessary lie detector tests, the U.S. Congress passed the Employee Polygraph Protection Act in 1988.
Who Is Covered
The Employee Polygraph Protection Act (EPPA) applies to most private employers. However, the law does not cover federal, state, and local government workers.
The EPPA prohibits most private employers from using lie detector tests, either for pre-employment screening or during the course of employment.
If you work for a private sector employer, your employer generally may not require or request that you, any other employee, or a job applicant take a lie detector test. Additionally, an employer may not discharge, discipline, or discriminate against an employee or job applicant for refusing to take a test or for exercising other rights under the Act.
If, for some reason, you have already taken a polygraph test, your employer may not use or inquire about the results of that test, nor can they discharge or discriminate against an employee or job applicant on the basis of the results of a test, for filing a complaint, or for participating in a proceeding under the Act.
Legitimate Administration of Tests
Subject to restrictions, the Act permits polygraph (a type of lie detector) tests to be administered to certain job applicants of security service firms (armored car, alarm, and guard) and of pharmaceutical manufacturers, distributors, and dispensers.
Also subject to restrictions, the Act also permits polygraph testing of certain employees of private firms who are reasonably suspected of involvement in a workplace incident (theft, embezzlement, etc.) that resulted in specific economic loss or injury to the employer.
Where polygraph examinations are allowed, they are subject to strict standards for the conduct of the test, including the pretest, testing, and post-testing phases. An examiner must be licensed and bonded or have professional liability coverage, and the Act strictly limits the disclosure of information obtained during a polygraph test.
The EPPA provides that employees have a right to employment opportunities without being subjected to lie detector tests unless a specific exemption applies. This mean that if your employer wants you to take a polygraph test, they must prove how it is necessary for your job. Otherwise, the EPPA provides employees the right to file a lawsuit for violations of the Act. In addition, the Wage and Hour Division accepts complaints of alleged EPPA violations.
Compliance Assistance Available
The Wage and Hour Division of the Employment Standards Administration administers and enforces the Act. More detailed information, including copies of explanatory brochures and regulatory and interpretative materials, may be obtained from your local Wage and Hour offices. Compliance assistance information may be found on the Wage and Hour Division's Web site.
If an employer breaks any of the previously mentioned laws, the Secretary of Labor can bring court action to restrain violators and assess civil money penalties up to $10,000 per violation. An employer who violates the law may also be liable to the employee or prospective employee for legal and equitable relief, including employment, reinstatement, promotion, and payment of lost wages and benefits.
Any person against whom a civil money penalty is assessed may, within 30 days of the notice of assessment, request a hearing before an administrative law judge. If dissatisfied with the administrative law judge's decision, a person may request a review of the decision by the Secretary of Labor. Final determinations on violations are enforceable through the courts.
Relation to State, Local, and Other Federal Laws
The law does not preempt any provision of any state or local law or any collective bargaining agreement that is more restrictive with respect to lie detector tests.
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