Introduction
The Employee Polygraph Protection Act (EPPA) prohibits most private employers from using lie detector tests, whether they’re implemented during the course of employment or for pre-employment screening. Generally speaking, employers are prohibited from taking the following actions under the EPPA:
- Suggesting, requesting, requiring, or causing any job applicant or employee to submit to a lie detector test
- Referring to, accepting, using, or inquiring about the results of a lie detector test conducted on a job applicant or employee
- Discriminating against, disciplining, terminating, or threatening to take action against a job applicant or employee who refuses to take a lie detector test
- Discriminating against, disciplining, or terminating a job applicant or employee for filing an EPPA complaint or participating in an EPPA investigation
Exceptions under the EPPA
Though subject to restrictions, there are a handful of cases where an employer may be allowed to administer a lie detector test to an employee or job applicant. These exceptions include:
- Job applicants of a security service company (guards, alarms, armored transport, etc.)
- Job applicants of a pharmaceutical manufacturer, distributor, or dispenser
- Employees who are reasonably suspected of involvement in a workplace incident (embezzlement, theft, etc.) that resulted in specific economic loss or injury to the employer
For the latter scenario, there needs to be a provable, reasonable suspicion that the employee in question was involved in the workplace incident. At a minimum, the employer will need to show that the employee had access to the missing property.
Limitations on permissible lie detector tests
In situations where a lie detector test is permissible, the test is subject to strict standards of conduct that dictate the pretest, testing, and post-testing procedures. The employee should receive written notice of the lie detector test at least 48 hours in advance, and the notice must include the employer’s valid reasons for conducting the examination.
If the lie detector test is in response to a workplace incident, the notice needs to inform the employee that they are a suspect in the investigation. The notice should also explain what happened in the incident, if there was any specific injury or loss, what was stolen, taken, or missing, and why the employee is a suspect in the investigation.
The lie detector examiner must be licensed, and he or she should be bonded or have professional liability coverage. Before administering the test, the employer is required to read aloud and have the employee sign a statement that includes the following:
- A list of off-limits topics that the employee cannot be questioned about, including political affiliation, the lawful activities of labor organizations, racial matters, sexual preference, and religious beliefs
- An acknowledgement of the employee’s right to refuse to take the test
- An acknowledgement that the employee isn’t required to take the test as a condition for obtaining employment
- An explanation of how the lie detector test results may be used
- An explanation of the employee’s legal rights if the test is not being done in accordance with the law
Employees and job applicants also have a few important rights during the course of the test. While the lie detector test is being administered, the employee has the right:
- To be questioned in a manner that isn’t degrading or needlessly intrusive
- To stop the test at any time
Any information obtained during the lie detector test is subject to strict confidentiality rules.
When the lie detector test is over, the results of the examination can only be disclosed to the following people:
- The employee or job applicant who took the test
- The employer who ordered the test
- The courts
- Government agencies
- An arbitrator or mediator (if there is a related court order)
Note that the EPPA explicitly prohibits prospective employers from requesting or accessing the results of a past lie detector test. The results of a lie detector test you took at the behest of a previous employer are sealed and cannot be a factor in future hiring decisions with other employers.
Enforcing the EPPA
The EPPA is administered and enforced by the US Department of Labor’s Wage and Hour Division (WHD). If you believe you have been subject to an unlawful lie detector test, call the WHD office nearest to your place of employment. The WHD will help you to determine if you have a valid claim, and if you do, you can submit a complaint against your employer to the WHD in writing.
The WHD will launch an investigation, and if it finds evidence that your employer violated the EPPA the agency can impose a $10,000 fine along with an injunction ordering the employer to correct the violation and make restitutions. Possible methods of restitution include hiring, promoting, reinstating, compensation for lost wages, and other logical solutions that can remedy the situation.
Taking civil action
You also have the right to take civil action against your employer by filing a lawsuit in federal court under the EPPA. Most successful cases against an employer end in a settlement agreement, but if your case goes to court you may be entitled to the following damages in a court judgement:
- Lost back pay – includes wages, salary, and benefits that you lost as a result of the employer’s unlawful actions. Lost back pay usually covers lost earnings from the date of the negative activity (termination, demotion, etc.) to the date of the court judgement.
- Lost front pay – includes wages, salary, and benefits that you stand to lose in the future due to the employer’s unlawful actions. Lost front pay is usually based on how long it may reasonably take to find a comparable job with comparable compensation.
- Liquidated damages – liquidated damages are automatically awarded unless the employer can prove that they acted in good faith (e.g. the employer thought they were acting within the acceptable limits of the EPPA). Liquidated damages are usually equal to the amount of back pay and front pay, so it doubles the size of the total damages.
- Repayment for court costs – the losing party in a court case is often required to pay the other party’s court costs and attorney fees (note that you won’t incur any costs in the course of a WHD investigation—only if you choose to pursue separate civil action).
Statute of limitations
Note that there is a time limit on how long you can wait to file a lawsuit or submit a claim to the WHD under the EPPA. In both cases, you will need to file within three years of the incident.
Need Help With An Employment Law Issue?
The state of Arizona is a great place to live and work, but knowing the employment laws will help you a lot. Whether you are a newcomer to the state or a lifelong resident, understanding your workplace protections is good for your career, and the more you know, the better.
Employment law issues can cause extreme distress and can affect productivity on the job. If you are being harassed at work, or dealing with any other employment issue, consider talking to our AZ employment law team to help you settle your case.
Call our Employment Law team at (480) 464-1111 to discuss your case today.
