The Employee Polygraph Protection Act of 1988 (EPPA)
What is EPPA?
December 27, 1988, the Employee Polygraph Protection Act (EPPA) became
law. This federal law established guidelines
for polygraph testing and imposed restriction
on most private employers. The following is a brief summary
of the essential elements of the law.
Who is affected by EPPA?
This legislation only affects commercial businesses.
Local, State and Federal governmental agencies
(such as police departments) are not affected by
the law, nor are public agencies, such as a school system or correctional
institution. In addition, there are exemptions
in EPPA for some commercial businesses. These
- Businesses under contract with the Federal Government
involving specified activities (e.g., counterintelligence
- Businesses whose primary purpose
consists of providing armored car personnel, personnel involved in the
design, or security personnel in facilities which have a significant
impact on the health or safety of any state.
Examples of these facilities would be a nuclear
or electric power plant, public water works, or toxic waste
- Companies which manufacturer, distribute or dispense
How does EPPA affect businesses
which are not exempt?
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 and examination, and if an employee refuses a request or suggestion,
the employer cannot discipline or discharge the employee based on
the refusal to submit to the examination.
What are the conditions that an employer must meet
in order to ask a current employee to take a
polygraph? The American Polygraph Association is furnishing
the following information, which it believes is in good faith, and
conforms with the Department of Labor's Regulations relating to polygraph
tests for employees. This information is considered only as a guideline
to assist in complying with the Act and Regulations, and the American
Polygraph Association is disclaiming any liability in connection therewith.
Employers should develop their own forms, using their own company name,
and should also review their final forms through their own legal counsel.
I. Checklist for the Employer
- 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.
- Provide the employee with a written statement
- identification of the company and location
- 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
- what kind of reasonable suspicion
there is to suspect the employee of being involved in the loss 5.
- The Statement provided to employee MUST be signed
by someone other than the polygraph examiner,
who is authorized to legally bind the employee, and MUST be
retained by the employer for at least 3 years.
- Read the Notice to Examinee
to the employee, which should be 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 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.
- Maintain a statement of adverse actions taken against
the employee following a polygraph test.
- Conduct an additional interview of employee prior
to any adverse action following a polygraph
- Maintain records of ALL of
the above for a minimum of 3 years.
- Employees may not waive their rights.
- Police and investigators are not exempt and must
comply if they are conducting an employment
related polygraph test, i.e., 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.
- There is a $10,000 penalty for EACH violation of
- Check out the credentials of the polygraph examiner
that you use and verify that the examiner
meets EPPA requirements. Never hesitate to ask
for written proof of licensing, liability insurance, etc.
- Use your company letterhead
on all forms you provide to the employee. Have your corporate
attorney review your actions to assure your compliance of EPPA. Are
Polygraph Results admissible in a court of law?
Admissibility in Court
It seems to be the public's general opinion that the
results of polygraph testing is not allowed
in court under any circumstances.
The truth is that Polygraph results are admissible
in most courts across the country. The Supreme
Court has yet to rule on the issue of admissibility
so it has been up to individual jurisdictions
to allow or disallow them. There are some jurisdictions
that have absolute bans on admitting polygraph
results, but most allow them.
Then why is this public opinion so wide-spread?
The simple fact is that both the plaintiff and the
defendant have to agree to having the results
of the test be admissible, prior to the examination
Since the results of the test are going to hurt one
party and help the other, the likelihood that
both parties will agree to admissibility before knowing
how it will affect their case, is minimal. Because
of this, results of Polygraph testing are rarely
admitted as evidence.
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