What Employers Must Know About the EPPA

WHAT EMPLOYERS MUST KNOW ABOUT THE EMPLOYEE POLYGRAPH PROTECTION ACT (EPPA)

There are three steps for an employer to follow when requesting polygraph examinations under the Employee Polygraph Protection Act. (EPPA)

Make sure your situation qualifies under EPPA. Read the Requirements below and confirm that your situation is in compliance.
Determine if you are going to proceed with polygraph testing, and call us to schedule the exams and make your Reservation Fee. (240-401-5762)
We will fax or email you our EPPA Economic Loss Packet consisting of specific instructions to follow and the necessary forms to complete to be in compliance with the EPPA law.
Have all forms filled out and faxed to us at 240-401-5762 PRIOR to the examination dates. DO NOT have the examinees bring the paperwork with them.

Employee Polygraph Protection Act (EPPA) Requirements:

Under the on-going investigations exception, there are four Requirements:

1. Economic loss or injury to the employer’s business & ongoing investigation

The polygraph examination(s) must be administered in connection with an ongoing investigation involving economic loss or injury to the employer’s business, such as theft, embezzlement, misappropriation, an act of unlawful industrial espionage or sabotage, check kiting, money laundering, or the misappropriation of confidential or trade secret information. In addition, instances such as theft from property managed by an employer or property held by an employer as a fiduciary or custodian, would meet the required injury standard. The economic loss must result from intentional wrongdoing, and not unintentional or accidental losses. It is the business of the employer that must suffer the economic loss or injury. Thus, according to the Department of Labor, a theft committed by one employee against another employee of the same employer does not satisfy the requirement. In addition, the ongoing investigation exemption does not allow a polygraph test to be used to determine whether an employee has used drugs or alcohol, or has engaged in misconduct other than misconduct causing economic loss or injury to the employer’s business.

2. Access

Only employees who have access to the property that is the subject of the investigation may be polygraphed. The term “access” includes more than direct or physical contact during the course of employment. Generally, all employees who have the ability to divert possession or otherwise affect the disposition of the property that is the subject of the investigation, will be deemed to have access under the ongoing investigation exemption.

3. Reasonable Suspicion

There must be a basis for reasonable suspicion that the employee to be polygraphed was involved in the incident or activity under investigation. Reasonable suspicion means that the employer must have an articulable basis to believe that the employee was involved in, or responsible for the economic loss or injury. The employer’s suspicions must not be based on whimsical or arbitrary factors, such as the race or ethnicity of the employee. Information from a co-worker, or information derived from an employee’s behavior, demeanor, or conduct, may be factors in forming a reasonable suspicion. Additionally, inconsistencies between facts, claims or statements that surface during an investigation can serve as a basis for reasonable suspicion. While the factors that constitute reasonable suspicion obviously will be unique to each case, they may include unusual displays of nervousness; suspicious statements during questioning; peculiar demeanor during questioning; information from co-workers or others; or, other observations about the subject’s (employee’s) behavior or habits which arouse suspicion. So long as the employer can describe and articulate a reasonable basis for suspicions, this requirement will be satisfied.

4. Special 48-Hour Notice

Before an employer may administer a polygraph examination to an employee under the ongoing investigations exemption, the employer must execute a statement that sets forth with particularity the specific incident being investigated, indicates that the employee has access to the property that is the subject of the investigation, and describes the basis of the employer’s reasonable suspicion that the employee was involved in the incident or activity under investigation. This statement must be provided to the examinee at least 48-hours before the scheduled examination; it must be signed by any person legally authorized to bind the employer; and it must be retained by the employer for at least three years.

What if an employee refuses to take the polygraph examination, or fails the examination?

The employer may not discharge, discipline, or deny employment or promotion or otherwise discriminate against a current employee based upon analyses of polygraph test charts, test results, or the employee’s refusal to take a polygraph examination, without addition supporting evidence.

The evidence which may serve as additional supporting evidence may be that evidence required under the ongoing investigation exception that constitutes reasonable suspicion that the employee was involved in the incident of activity.

Additional supporting evidence can include, but is not limited to:

(a) Evidence indicating that the employee had access to the missing or damaged property that is the subject of an on-going investigation; and

(b) Evidence leading to the employer’s reasonable suspicion that the employee was involved in the incident of activity under investigation; or