Federal EPPA Lists Rules for Lie Detector Tests

This month’s featured employment law is the federal Employee Polygraph Protection Act (EPPA), which covers all private employers whose operations affect interstate commerce. EPPA prohibits an employer from requiring, requesting, suggesting, or causing any employee or prospective employee to take or submit to a lie detector test. The law also prohibits an employer from using, accepting, referring to, or inquiring about the results of a lie detector test of any employee or prospective employee.

EPPA prohibits an employer from discharging, disciplining, discriminating against in any manner, or denying employment or promotion to or threatening to take any such action against an employee or prospective employee who refuses, declines, or fails to take or submit to a lie detector test. The law also prohibits retaliation against employees or prospective employees for exercising their rights under the Act.

EPPA requires each employer to post and maintain a notice summarizing its pertinent provisions in conspicuous places on the employer’s premises where notices for employees and applicants are customarily posted. The law authorizes the secretary of labor to make investigations and inspections and subpoena records as part of an investigation.

Exemptions
EPPA contains a number of exemptions:

• First, the law doesn’t apply to the U.S. government, any state or local government, or any political subdivision of a state or local government
• EPPA contains a national defense and security exception as well as an FBI contractors’ exemption
• The law contains an exemption for a company whose primary business purpose consists of providing armored car personnel, personnel engaged in the design, installation, and maintenance of security alarm systems, or other uniformed or plainclothes security personnel who work in various specified facilities and/or occupations
• EPPA also includes an exemption for employers that are authorized to manufacture, distribute, or dispense controlled substances listed in certain federal laws
• Finally, EPPA includes a limited exception for certain ongoing investigations involving economic loss or injury to the employer’s business or acts of industrial sabotage or espionage

Employees’ Rights
EPPA lists the rights that an employee has under a number of the above exemptions. Those rights are significant, and the law should be consulted about them during the pre-test phase, the testing phase, and the post-test phase of a lie detector test. The law also requires that individuals who conduct polygraph tests satisfy certain requirements under the federal law before certain exemptions can be available. The law contains limited circumstances in which the employer can disclose the results of a polygraph test.

An employer that violates EPPA may be assessed a civil penalty of not more than $10,000. The secretary of labor is authorized to file a lawsuit for injunctive relief to restrain violations of the Act and seek legal relief, including reinstatement, promotion, and payment of back pay and benefits. Individual employees may also file private civil actions to enforce the law. If the employee prevails, an employer may be liable for legal and equitable relief, including reinstatement, promotion, and payment of lost wages and benefits. Also, the court, in its discretion, may award reasonable costs and attorneys’ fees to a prevailing employee.

Final Word to Wisconsin Employers
EPPA is the federal law that restricts the use of lie detectors by employers. Wisconsin employers should be aware that the Wisconsin Fair Employment Act also restricts the use of those tests in an employment context. Employers’ potential liability for requiring employees to undergo the tests is significant. You should consult with your legal counsel before requiring any employee to undergo a lie detector test.

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