What is EPPA?

On 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.

EPPA has:

1) Provided clear, legal criteria for the conduct of polygraph examinations or the termination of an employee for refusal of same.
2) Confirmed that the polygraph is the only acceptable instrument for determining truth.
3) Established your right for the conduct of polygraph examinations of an employee.

EPPA provides the guidelines by which an employer may conduct polygraph examinations of employees. The act may be regarded in full at Website:
http://www.admpoly.com/eppahome.htm

EPPA does provide for testing of employees under the guidelines enacted. A brief overview of the guidelines states an employer may request a polygraph examination of an employee on event-specific loss situations requiring:

a) An identifiable economic loss/injury has been sustained
(The employer must be able to identify the specific incident or activity.)

b) The examination is part of an ongoing investigation
(The “ongoing investigation” must be of a specific incident or activity.)

c) The employee requested to undergo the examination must have had access to that loss which occurred
(The word “access” refers to the opportunity that an employee had to cause, or to aid or abet in causing, the specific economic loss or injury under investigation.)

d) Reasonable suspicion of that employee must exist.

The term “reasonable suspicion” refers to an observable, articulable basis in fact which indicates that a particular employee was involved in, or responsible for, an economic loss.

The employee’s behavior, demeanor, or conduct may also be a factor in the basis for reasonable suspicion. Likewise, inconsistencies between facts, claims, or statements that surface during an investigation can serve as a sufficient basis for reasonable suspicion. Sole possession can also be a basis for reasonable suspicion.

While access or opportunity, standing alone, does not constitute a basis for reasonable suspicion, the totality of circumstances surrounding the access or opportunity (such as its unauthorized or unusual nature) may constitute a factor in determining whether there is a reasonable suspicion.

Access in the sense of possible or potential opportunity, standing alone, does not constitute a basis for reasonable suspicion. There must be something in addition to access. (For example, information from a co-worker, plus access by the particular employee, would satisfy the reasonable suspicion test.)
Random testing to determine whether a theft has occurred is not allowed.

Meeting the above conditions does permit the request of a polygraph examination. Additional conditions include:

a) A notice to the employee to be signed by the employer and employee at least 48-hours in advance of the scheduled examination (not including weekends). This notice includes the identification of the loss, the employee’s access, and the reason for suspicion of the employee’s involvement.

b) The instrumentation to be utilized with the legal requirements spelled out.

c) The date, place and time of the examination.

The company will execute a statement, in a language understood by the employee, and provide said statement to the employee before the polygraph test, that meets the requirements of Section 7 (d) (4) of the statute that does the following:

1) Sets forth with particularity the specific incident or activity being investigated and the basis for testing the particular employee.

2) Is signed by an officer authorized to legally bind the company.

3) Is retained by the employer for at least three years.

Further, prior to the examination the employee/examinee is to be read his “rights of examinee” as outlined by EPPA.

Following the test the employee is to be given the results of the examination in writing.

It is important to note that no punitive measure may be taken under the law prior to providing the examinee a copy of the examination questions and answers, the examiner’s opinion as to results, and a copy of the resultant charts. An opportunity to explain reactions must be provided.

The above are only highlights of the requirements under EPPA. Leonard Bierman & Associates provides additional forms and information to interested parties. Please regard the full act at: http://www.admpoly.com/eppahome.htm

Policy

A certified Examiner as required by EPPA, including any state requirements, will administer all polygraph examinations. In all applications where the polygraph is administered, regulatory requirements will be followed. The examinations will be conducted with professionalism and integrity and will be administered uniformly, irrespective of the individual’s race, color, sex, age, national origin, religion, citizenship status, disability or veteran status.