The Employee Polygraph Protection Act of 1988 (EPPA) is a United States federal law that generally prevents employers from using polygraph (lie detector) tests, either for pre-employment screening or during the course of employment, with certain exemptions.
A commercial business can require a polygraph exam if an employee was “reasonably suspected” of involvement in a workplace incident, like a theft or embezzlement, and if the incident resulted in a financial loss to that business.
Businesses cannot request, suggest, or require any job applicant to take a pre-employment polygraph examination. In the case of a current employee, businesses can request or suggest the employee take a polygraph examination, but only when specific conditions have been satisfied. However, the employer cannot require a current employee to take an examination. If an employee refuses such a request or suggestion, the employer cannot discipline or discharge the employee based on the refusal to submit to the examination.
The American Polygraph Association provides the Checklist for the Employer in good faith, the contents of which conforms to the Department of Labor’s Regulations relating to polygraph tests for employees. This information is considered only as a guideline to assist businesses to comply with the Act and Regulations, and the American Polygraph Association disclaims any liability in connection therewith. The American Polygraph Association recommends that employers develop their own documents and procedures (such as those described in the Checklist for the Employer) which bear their own company name and have been reviewed by their legal counsel.
If a business suffers a specific financial loss, then meets all the requirements of EPPA to conduct polygraph examinations, and an individual is found to be deceptive, what then? According to 29 U.S.C. 2007(a)(1), that business cannot discipline or terminate the employee in question, unless the employer has "additional supporting evidence" justifying its actions. Employers are urged to work with their attorney throughout the entire process, to avoid liability and fines. Ensure that attorney is up to date on current case law and has reviewed appropriate discussions on any recent case law or law changes.