EMPLOYEE POLYGRAPH PROTECTION ACT OF 1988

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EMPLOYEE POLYGRAPH PROTECTION ACT OF 1988

• Gordon L. Vaughan, Esq.

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Historical Context of EPPA
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Pre- EPPA Use of Polygraph

• 25 of all major US Employers Used Polygraph
• 50 of retail employers used polygraph to screen
  and control employee theft
• 200,000 1,000,000 employee polygraphs in 1984
• 2,000,000 employee polygraphs in 1985

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Job Applicant Screening

• Approximately three-fourths of employee
  polygraphs were for job screening

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Pre-EPPA Polygraph Abuse

• Number of Examinations in a day
• Personally Intrusive Questions
• Inadequate Licensing
• Inadequate Training
• No Practice Standards

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Bi-Partisan Political Support
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Congressional Hearings

• 1985 Senate Hearings
• Chairman Hatch There is no conclusive proof
  that polygraph tests work. According to the
  Office of Technology Assessment . . . There is
  very little research or scientific evidence to
  establish polygraph test validity in screening
  situations . . .

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Congressional Hearings

• Senator Kennedy The use and abuse of these so
  called lie-detectors has reached truly alarming
  proportions . . .

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Congressional Hearings

• Senator Kerry As a prosecutor in Middlesex
  County in Massachusetts, I found the polygraph to
  be a useful tool ... Because of that experience,
  I am pleased that this legislation includes an
  exemption for Federal, State and local
  governments.

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Congressional Hearings

• Senator Thurmond I am not convinced that
  regulating the use of polygraphs should be a
  matter of Federal law .

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Congressional Hearings

• Norman Ansley (Chief, Polygraph Division NSA)
  The National Security Agency and its
  predecessor agency has used the polygraph as a
  condition of access for all civilian employees
  since 1951. We feel the polygraph is
  absolutely vital to the security of the National
  Security Agency and similar operations within the
  Defense Department.

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Congressional Hearings

• David Raskin, PhD There is no scientific
  evidence that polygraph testing, when used in the
  commercial sector for screening, has any
  validity.

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Congressional Hearings

• John R. Bolton (Assistant Attorney General)
  Because the polygraph can frequently provide
  accurate information about a persons veracity,
  the federal government should not prohibit its
  use by non-governmental employers.

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State Law

• At least 18 States Enacted Regulations Governing
  Polygraph Use
• Lacked Uniformity
• Inconsistent Enforcement
• Circumvented

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Congressional Efforts To Regulate Polygraph

• 100th Congress
• House ban all use except select industries
• manufacture and distribution of drugs, private
  security
• Senate total ban on pre-employment but
  exception for investigation of certain economic
  crime

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APA Membership Trends Since EPPA

• 1987 Includes 76 International Members
• 2008 Includes 465 International Members

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US Private Sector Members 1986
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US Private Sector Members 2008
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EPPA

• PROHIBITIONS ON LIE DETECTOR USE
• Absent an exemption under the Act, EPPA prohibits
  employers from directly or indirectly
• Requiring, requesting, suggesting, or causing
  any employee or prospective employee to take a
  lie detector test
• Using, accepting, or inquiring about the
  results of a lie detector test
• Discharging, disciplining, discriminating
  against, denying employment or promotion, or
  threatening to take adverse employment action
  against an employee or prospective employee
  based on the results of a lie detector test or
  for refusing to take a lie detector test and
• Discriminating against an employee or
  prospective employee for filing a complaint
  under the Act or otherwise exercising rights
  under the act.

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Definition of Lie Detector

• EPPA defines a lie detector as a polygraph,
  deceptograph, voice stress analyzer,
  psychological stress evaluator, or any other
  similar device used for rendering a diagnostic
  opinion regarding the honesty or dishonesty of an
  individual.

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EPPA

• What Needs To Be Proved To Establish An EPPA
  Violation?
• Employee Took or Was Asked To Take a Lie Detector
  Examination
• Lie Detector Examination Was A Factor In the
  Employment Decision

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EPPA

• Defense
• Employer Would Have Made Same Decision Even if it
  Had Knot Known About the Examination
• Worden v. Sun Trust Banks, Inc.

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What if a law enforcement agency initiates and
administers the lie detector exam?
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Employer Cooperation With Law Enforcement Agency

• EPPA does not prevent employees from co-operating
  with law enforcement agencies who seek to
  administer a lie detector examination to an
  employee for a matter arising out of the
  employees employment.

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Employer Cooperation With Law Enforcement Agency

• An employers cooperation must remain passive in
  nature
• The employer may not seek the examination or
  actively participate in the examination
• The receipt by an employer of information from a
  polygraph test administered by police pursuant to
  a criminal investigation of an employee is
  prohibited.

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WHO IS AN EMPLOYER UNDER EPPA

• The Act defines an employer as any person acting
  directly or indirectly in the interest of an
  employer in relation to an employee or
  prospective employee.
• EPPA applies to all employees of covered
  employers, regardless of their citizenship
  status, and to foreign corporations operating in
  the United States.

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EFFECTS ON OTHER LAWS OR AGREEMENTS

• EPPA does not preempt any provision of a state or
  local law or any provision of a collective
  bargaining agreement that prohibits lie detector
  tests or is more restrictive with respect to the
  use of lie detector tests.

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APPENDIX B

• Alaska
• California
• Connecticut
• Delaware
• Hawaii
• Idaho
• Illinois
• Iowa
• Maine
• Massachusetts
• Michigan
• Minnesota
• Montana

• Nebraska
• Nevada
• New Jersey
• New York
• Oregon
• Pennsylvania
• Rhode Island
• Tennessee
• Vermont
• Virginia
• Washington
• West Virginia
• Wisconsin

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EXCLUSIONS AND EXEMPTIONS

• Exclusion for Public Sector Employees
• Exemption for Natl Defense and Security
• Exemption for Certain Manufacture and
  Distribution of Controlled Substances
• Exemption for Certain Security Services
• Exemption for Investigation of Economic Loss or
  Injury

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Exclusion for Public Sector Employees
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Exclusion for Public Sector Employees

• Excluded from the Act is the United States
  government, any state or local government, or any
  political subdivision of a state or local
  government acting in the capacity of an employer.

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Exclusion for Public Sector Employees

• Political subdivision is broadly interpreted.
• Hossaini v. Western Missouri Med. Ctr.

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Exclusion for Public Sector Employees

• The exclusion for public-sector employees applies
  only to the employees of the governmental entity.
  Except as is provided in other sections of the
  Act, the public-sector exclusion does not extend
  to employees of private contractors and
  non-governmental agencies.

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Exclusion for Public Sector Employees

• Because public-sector employers are exempt from
  EPPA, they can administer lie detector tests on
  their employees and other persons described
  herein without complying with the restrictions
  placed on permissible private-employer testing.

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Exemption for National Defense and Security
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Exemption for National Defense and Security

• The federal government may, under an exemption
  for national defense and security, administer
  polygraphs under certain conditions to private
  employers and contractors.

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Exemption for National Defense and Security

• Pursuant to this exemption, lie detector tests
  may be administered in the performance of any
  counter-intelligence function to the following
• Any expert, consultant, or employee of any
  contractor under contract with the Department of
  Defense and
• Any expert, consultant, or employee of any
  contractor under contract with the Department of
  Energy to the extent that it is in connection
  with the atomic energy defense activities of the
  Department of Energy.

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Exemption for National Defense and Security

• Additionally, the exemption permits
  administration of a lie detector test by the
  federal government in a performance of any
  intelligence or counter-intelligence function to
  any expert, consultant, or any individual
  employed by, assigned to, or detailed to any of
  the following agencies
• National Security Agency
• Defense Intelligence Agency and
• Central Intelligence Agency.

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Exemption for National Defense and Security

• An exemption is also given to tests by the
  federal government to any employee of a
  contractor of the Federal Bureau of Investigation
  who is engaged in the performance of any work
  under a contract with the Bureau.

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Exemption for National Defense and Security

• Any lie detector tests performed under the
  National Defense and Security exemption must be
  administered in accordance with the applicable
  Department of Defense directives and regulations
  or other federal government directives addressing
  the issue.

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Exemption for Drug Manufacturers and Distributors
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Exemption for Drug Manufacturers and Distributors

• This exemption authorizes administration of a
  polygraph to prospective employees who would have
  direct access to the manufacture, storage,
  distribution, or sale of any qualified controlled
  substance.
• A qualified control substance is any controlled
  substance listed in schedule I, II, III, or IV of
  the Controlled Substances Act. 21 USC 812.

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Exemption for Drug Manufacturers and Distributors

• It also authorizes administration of a polygraph
  exam to a current employee if the following
  conditions are met
• The test is administered in connection with an
  ongoing investigation of criminal or other
  misconduct involving loss or injury to the
  manufacture, distribution, or dispensing of any
  qualifying controlled substance by such employer
  and
• The employee had access to the person or
  property that is the subject of the
  investigation.

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Exemption for Drug Manufacturers and Distributors

• The investigation exception for this exclusion
  differs from the ongoing investigations of
  economic loss or injury as there is no provision
  for a need of reasonable suspicion under this
  exemption. As such, a drug manufacturer would be
  permitted to polygraph all current employees who
  have access to a controlled substance stolen from
  the inventory.

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Exemption for Drug Manufacturers and Distributors

• The right to conduct polygraph examinations of
  current employees under the ongoing-investigation
  exception is only in connection with the loss or
  injury, or potential loss or injury, to the
  manufacture, distribution, or dispensing of a
  qualifying controlled substance.

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Exemption for Drug Manufacturers and Distributors

• A failure to abide by the limitations applicable
  to the exclusion will result in the loss of the
  exclusion.

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Exemption for Employees Providing Security
Services
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Exemption for Employees Providing Security
Services

• The Act provides an exemption, subject to certain
  restrictions, to private employers for certain
  employers in the armored car, security alarm, and
  security guard fields.

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Exemption for Employees Providing Security
Services

• To qualify, such employers must have as their
  primary business purpose providing armored car,
  security alarm, or other uniformed or
  plain-clothes security services, and such
  function must include the protection of
• Facilities, materials, or operations having a
  significant impact on the health or safety of any
  state or political subdivision thereof or the
  national security of the United States
• Currency, negotiable securities, precious
  commodities or instruments, or proprietary
  information.

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Exemption for Employees Providing Security
Services

• The exemption applies only to prospective
  employees, though such employers may administer
  polygraph tests to current employees for ongoing
  investigations.

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Exemption for Investigation of Economic Loss or
Injury
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Exemption for Investigation of Economic Loss or
Injury

• Under the economic-loss exemption, an employer
  may, pursuant to strict requirements and
  conditions of the Act, request an employee to
  submit to a polygraph test.
• Permits polygraph test only.

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Exemption for Investigation of Economic Loss or
Injury

• In order to qualify for this exemption, the
  following must be met

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Exemption for Investigation of Economic Loss or
Injury

• (1) The test is administered in connection with
  an ongoing investigation involving economic loss
  or injury to the employer's business, such as
  theft, embezzlement, misappropriation or an act
  of unlawful industrial espionage or sabotage

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Exemption for Investigation of Economic Loss or
Injury

• (2) The employee had access to the property that
  is the subject of the investigation

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Exemption for Investigation of Economic Loss or
Injury

• (3) The employer has a reasonable suspicion that
  the employee was involved in the incident or
  activity under investigation

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Exemption for Investigation of Economic Loss or
Injury

• (4) The employer provides the examinee with a
  statement, in a language understood by the
  examinee, prior to the test which fully explains
  with particularly the specific incident or
  activity being investigated and the basis for
  testing particular employees and which contains,
  at a minimum

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Exemption for Investigation of Economic Loss or
Injury

• (i) An identification with particularity of the
  specific economic loss or injury to the business
  of the employer
• (ii) A description of the employees access to
  the property that is the subject of the
  investigation
• (iii) A description in detail of the basis of
  the employers reasonable suspicion that the
  employee was involved in the incident or activity
  under investigation and
• (iv) Signature of a person (other than a
  polygraph examiner) authorized to legally bind
  the employer and

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Exemption for Investigation of Economic Loss or
Injury

• (5) The employer retains a copy of the
  statement and proof of service for at least 3
  years and makes it available for inspection by
  the Wage and Hour Division on request.

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Exemption for Investigation of Economic Loss or
Injury

• Exemption applies only to ongoing investigations
  of a specific incident or activity.
• Exemption would not permit an employer to request
  that an employee submit to a polygraph test to
  determine if random thefts have occurred as such
  random testing is prohibited by the Act.
• Unspecified statistical shortages would not
  qualify as on ongoing investigation of a specific
  economic loss absent additional evidence that
  specific items were missing through intentional
  wrongdoing and that there is a reasonable
  suspicion that the employee to be tested was
  involved.

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Exemption for Investigation of Economic Loss or
Injury

• In order to qualify as a reasonable suspicion,
  such suspicion must be based on an observable,
  articulable basis in fact which indicates that a
  particular employee was involved or responsible
  for the economic loss.
• Access alone is an insufficient basis for
  reasonable suspicion.

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Exemption for Investigation of Economic Loss or
Injury

• An adverse employment action cannot be based
  solely upon the analysis of polygraph tests or
  the refusal of the employee to take a polygraph
  test without additional supporting evidence.
• Additional supporting evidence may include, but
  is not limited to
• admissions or statements made by an employee
  before, during, or following the polygraph
  examination
• corroborating evidence from other sources
• and/or the employees access to the property
  which is the subject of the ongoing investigation
  and to which there was a reasonable suspicion
  that the employee was involved.

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Exemption for Investigation of Economic Loss or
Injury

• Failure to follow EPPAs conditions for pursuing
  a polygraph under the ongoing-investigation
  exemption strictly will result in a loss of the
  exemption.
• Escalante v. Rapid Armored Corp.
• Albin v. Cosmetics Plus N.Y., Ltd.
• Campbell v. Woodard Photographic, Inc.

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RIGHTS OF THE EXAMINEE
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RIGHTS OF THE EXAMINEE(General Rights)

• Any polygraph examination shall consist of one or
  more pre-test phases, an actual testing phase,
  and post-test phases.
• No polygraph test, including all phases of the
  test, shall be less than 90 minutes in length.
• The test period begins at the time the examiner
  begins informing the examinee of the nature and
  characteristics of the examination and the
  instruments involved and ends when the examiner
  completes the review of the test results with the
  examinee.

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RIGHTS OF THE EXAMINEE(General Rights)

• During all phases of the polygraph testing, the
  person being examined has the following rights
• (1) The examinee may terminate the test at any
  time.
• (2) The examinee may not be asked any questions
  in a degrading or unnecessarily intrusive manner.

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RIGHTS OF THE EXAMINEE(General Rights)

• (3) The examinee may not be asked any questions
  dealing with
• (i) Religious beliefs or affiliations
• (ii) Beliefs or opinions regarding racial
  matters
• (iii) Political beliefs or affiliations
• (iv) Sexual preferences or behavior or
• (v) Beliefs, affiliations, opinions, or lawful
  activities concerning unions or labor
  organizations.

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RIGHTS OF THE EXAMINEE(General Rights)

• (4) The examinee may not be subjected to a test
  when there is sufficient written evidence by a
  physician that the examinee is suffering from any
  medical or psychological condition or undergoing
  any treatment that might cause abnormal responses
  during the actual testing phase.
• To demonstrate sufficient written evidence of
  such a medical or psychological condition, there
  must be, at a minimum, a statement by a physician
  specifically describing the medical or
  psychological condition and the basis of the
  physicians opinion that the condition or
  treatment might result in an abnormal response.

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RIGHTS OF THE EXAMINEE(Pre-Test Phase Rights)

• Notice
• The examinee must be provided at least 48 hours
  before the time of the examination (excluding
  weekend days and holidays) with
• Written notice as to when and where the
  examination will take place
• That the examinee has the right to consult with
  counsel or an employee representative before each
  phase of the test. Such notice shall be received
  by the examinee at least 48 hours, excluding
  weekend days and holidays, before the time of the
  examination. An employee may agree, in writing,
  to a 24-hour notice.

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RIGHTS OF THE EXAMINEE(In-Test Phase Rights)

• The examiner shall not ask any questions that
  were not presented in writing for review prior to
  the testing phase.
• If the examination is one for an ongoing
  investigation, all relevant questions must
  pertain to that ongoing investigation.

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RIGHTS OF THE EXAMINEE(Post-Test Phase Rights)

• Before an employer may take any adverse
  employment action, the employer must conduct a
  further interview of the examinee on the basis of
  the test results.
• The examinee must be given a written copy of any
  opinions or conclusions rendered in response to
  the test as well as the questions asked during
  the test with the corresponding charted
  responses.
• The employee is entitled to a copy of the entire
  examination charts recording the employees
  physiological responses and not just the
  examiners written report.

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Qualifications of Examiners

• The following qualifications are required to
  administer examinations pursuant to EPPA
• Have a valid current license, if required by
  the state in which the test is to be conducted
• Carry a bond or insurance policy of a minimum
  of 50,000
• Administer no more than five polygraph
  examinations in any one calendar day
• Administer no polygraph examination which is
  less than 90 minutes in duration
• Any opinions or conclusions regarding
  truthfulness of the subject must be rendered in
  writing, based solely on the polygraph test
  results.

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• Disclosure of Test Information and Preservation
  of Records

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Disclosure of Test Information and Preservation
of Records

• Records regarding polygraph examinations are to
  be maintained by the employer for a period of
  three (3) years.

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Disclosure of Test Information and Preservation
of Records

• Disclosure of any information obtained during a
  polygraph test is strictly limited and may be
  disclosed only to
• The examinee or an individual specifically
  designated in writing by the examinee to receive
  such information
• The employer that requested the polygraph test
  pursuant to the provisions of the Act
• Any court, governmental agency, arbiter, or
  mediator pursuant to an order from a court of
  competent jurisdiction for production of such
  information
• The secretary of labor or the secretarys
  representative when specifically designated in
  writing to receive such information.

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Penalties

• Civil Penalties
• 10,000 for each violation
• Reinstatement, promotion, back pay and benefits

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Penalties

• Civil Action
• Damages
• Compensatory Damages
• Emotional Distress
• Punitive Damages (?)
• Attorney Fees

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Jury Verdicts

• Lyles v. Flagship Resort Dev. Corp
• 4,076,445.00

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The End