Polygraph Tests
MLB
9 Posts
Need some input quick! According to the Federal Polygraph Protection Act, we can request (As a private employer) an employee to submit to a polygraph test with "reasonable suspicion" and proof an employee had access to missing property.
We must give the employee at least two days advance notice, EE must be allowed to review the questions, consult with an attorney, can terminate the testing at any time, and can refuse to submit to a test.
We cannot terminate an employee based on the outcome of the test or the refusal to take a test.
The topic and requirements are much more involved but does this sound like it covers the general outline of the regulations?
We must give the employee at least two days advance notice, EE must be allowed to review the questions, consult with an attorney, can terminate the testing at any time, and can refuse to submit to a test.
We cannot terminate an employee based on the outcome of the test or the refusal to take a test.
The topic and requirements are much more involved but does this sound like it covers the general outline of the regulations?
Comments
I found the requirements to prove "reasonable suspicion" to be pretty tough. We have 3 people I'd like to test, but only 2 qualify. We are still debating it.
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Polygraph Tests
Arizona
Effect of Federal Law
Since there is no provision in Arizona law regulating the administration or use of lie detector tests, the federal Employee Polygraph Protection Act of 1988 (29 U.S.C. 2001et seq.) is the governing law on such practices in the private sector.
Federal Prohibition
Under the federal Act, most private employers are prohibited from requiring employees or prospective employees to submit to lie detector tests. The law defines a lie detector as any mechanical or electrical device that is used to render a diagnostic opinion about the honesty or dishonesty of an individual. The definition includes polygraphs, deceptographs, voice stress analyzers, psychological stress evaluators, and similar devices. It is also illegal to use or inquire about a lie detector test conducted by someone else.
Subject to certain restrictions, any employer may legally request that an employee take a lie detector test as part of an ongoing investigation involving economic loss or injury to the employer's business, such as theft, embezzlement, misappropriation, or industrial espionage or sabotage. However, such tests can only be administered to employees who are reasonably suspected of involvement, and they must have had access to the property that is the subject of the investigation to justify testing.
An employer may not discipline, discharge, discriminate against, or deny promotion or employment to an employee or a prospective employee for refusing to take a test or on the basis of the test results or for retaliation for a complaint that the employer has violated the law. Employers are required to post notice regarding this Act in a conspicuous place. Certain classes of employees, including employees of federal, state, and local governments, are specifically excluded from the protections of the federal polygraph law.
Lie Detector Tests
National
Summary
The law defines a "lie detector" as any mechanical or electrical device that is used to render a diagnostic opinion about the honesty or dishonesty of an individual. The definition includes polygraphs, deceptographs, voice stress analyzers, psychological stress evaluators, and similar devices. Although most employers are prohibited by federal law from requiring employees to submit to lie detector tests, there are certain exceptions for public employees, government contractors, certain security personnel and drug company employees, as well as theft and industrial espionage investigations, if certain steps are taken.
Federal Prohibition
Under the federal Employee Polygraph Protection Act of 1988 (EPPA)(29 U.S.C. 2001 et seq.), most private employers are prohibited from requiring employees or prospective employees to submit to lie detector tests. It is also illegal to use or inquire about a lie detector test conducted by someone else. An employer may not discipline, discharge, discriminate against, or deny promotion or employment to an employee or a prospective employee for refusing to take a test, or on the basis of the test results. In addition, employers may not discipline, discharge, discriminate against, or deny promotion or employment in retaliation for a complaint that the employer has violated the law.
Definitions
Lie detector tests includes a polygraph, deceptograph, voice stress analyzer, psychological stress evaluator or similar device (whether mechanical or electrical) used to render a diagnostic opinion as to the honesty or dishonesty of an individual.
Polygraph means an instrument that records continuously, visually, permanently, and simultaneously changes in cardiovascular, respiratory and electrodermal patterns as minimum instrumentation standards and is used to render a diagnostic opinion as to the honesty or dishonesty of as individual.
Exempt Job Classifications
With limited exceptions, certain classes of employees are exempt from the Act:
Public employees. Employees of federal, state, and local governments are specifically excluded from the protections of the federal polygraph law.
Government contractors. Private firms and consultants that contract with the Department of Defense, the Department of Energy, the F.B.I., or any of the federal intelligence agencies can be required by the federal government, in the conduct of its intelligence and counterintelligence functions, to administer lie detector tests to their employees.
The EPPA also includes limited exemptions where polygraph tests (but no other lie detector tests) may be administered in the private sector, subject to certain restrictions.
Economic loss. Tests may be administered to employees who are reasonably suspected of involvement in a workplace incident that results in economic loss to the employer and who had access to the property that is the subject of an investigation. See Theft and Industrial Espionage, below, for more details.
Security personnel. Tests may be administered to prospective employees of armored car, security alarm, and security guard firms who protect facilities, materials, or operations affecting health or safety, national security, or currency and other like instruments.
Drug company employees. Tests may be administered to prospective employees of pharmaceutical and other firms authorized to manufacture, distribute, or dispense controlled substances who will have direct access to such controlled substances, as well as current employee who had access to persons or property that are the subject of an ongoing investigation.
Qualification of Examiner
The federal EPPA requires examiners to have a valid and current license if required by a state in which the test is to be conducted. Examiners must maintain a minimum of $50,000 bond or professional liability coverage.
Theft and Industrial Espionage Investigations
Subject to certain restrictions, any employer may legally request that an employee take a lie detector test as part of an ongoing investigation involving economic loss or injury to the employer's business, such as theft, embezzlement, misappropriation, or industrial espionage or sabotage. However, such tests can only be administered to employees who are reasonably suspected of involvement, and they must have had access to the property that is the subject of the investigation to justify testing. pre-test statement required
If a test is requested as part of an investigation into economic loss or injury to the employer's business, the employer must provide the examinee with a statement before the test that:
• Describes the specific incident or activity being investigated and the basis for the testing
• Is signed by a person (other than the examiner) authorized to legally bind the employer
• Describes the specific economic loss or injury to the employer's business
• Indicates that the employee had access to the property that is the subject of the investigation
• Describes the basis of the employer's reasonable suspicion that the employee was involved
In addition, the employer is required to retain the statement for at least three years after the test is administered.
Disclosure of Test Findings
It is illegal for a polygraph examiner to disclose test findings to anyone except the employer and the employee, unless there is a court order authorizing disclosure to a government agency or a mediator or arbitrator. An employer is forbidden to make any disclosure of test findings except to the employee, or pursuant to a court order. An employer may also disclose findings when the disclosed information constitutes an admission of criminal conduct. In such a case, disclosure is limited to governmental agencies.
Preemption
State laws and collective bargaining agreements that give employees greater protection against lie detector tests than the federal law are valid and enforceable. They are not preempted by the federal statute.
Honesty Tests
The federal law applies only to tests conducted with mechanical or electrical devices. It does not prohibit so-called "honesty tests," which typically take the form of written or oral questionnaires containing items designed to uncover a general predisposition to dishonesty. Although such tests are not much help in conducting investigations of wrongdoing, they can be useful in the selection of employees for positions of trust and other sensitive jobs.
Required Postings
Every employer subject to the EPPA must post and keep posted a notice explaining the EPPA on its premises. The notice must be posted in a prominent and conspicuous place in every establishment of the employer where it can readily be observed by employees and applicants for employment.
Additional Information
The Wage and Hour Division of the Employment Standards Administration (ESA) administers and enforces the Act. For more information, go to the ESA’s website at [url]http://www.dol.gov/esa/whd[/url]
Enforcement
Any employer who violates the Employee Polygraph Protection Act may be civilly fined up to $10,000, on the basis of the determination of the Secretary of Labor of the United States. Penalties for a violation include issuance of a restraining order or injunction, reinstatement, promotion, and payment of lost wages and benefits.
After questioning our EE regarding the missing items, he/she has not returned to work. We are nearing three days so it appears the problem may have solved itself.