Transcript EMPLOYEE POLYGRAPH PROTECTION ACT OF 1988

EMPLOYEE POLYGRAPH
PROTECTION ACT OF 1988
EPPA COMES OF AGE
(A REVIEW OF THE HISTORY,
LAW, AND APPLICATION OF EPPA)
Gordon L. Vaughan, Esq.
Historical Context of EPPA
Pre- EPPA Use of Polygraph
• 25% of all major US Employers Used
Polygraph
• 50% of retail employers used polygraph to
screen and control employee theft
• 200,000 – 1,000,000 employee polygraphs
in 1984
• 2,000,000 employee polygraphs in 1985
Job Applicant Screening
• Approximately three-fourths of employee
polygraphs were for job screening
Pre-EPPA Polygraph Abuse
Number of Examinations in a day
Personally Intrusive Questions
Inadequate Licensing
Inadequate Training
No Practice Standards
Bi-Partisan Political Support
Congressional Hearings
• 1985 Senate Hearings
– Chairman Hatch: “There is no conclusive
proof that polygraph tests work. According to
the Office of Technology Assessment . . .
‘There is very little research or scientific
evidence to establish polygraph test validity in
screening situations . . .’ ”
Congressional Hearings
• Senator Kennedy: “The use and abuse
of these so called ‘lie-detectors’ has
reached truly alarming proportions . . . “
Congressional Hearings
• Senator Kerry: “As a prosecutor in
Middlesex County in Massachusetts, I
found the polygraph to be a useful tool ...
Because of that experience, I am pleased
that this legislation includes an exemption
for Federal, State and local
governments.”
Congressional Hearings
• Senator Thurmond: “I am not convinced
that regulating the use of polygraphs
should be a matter of Federal law … .”
Congressional Hearings
• Norman Ansley (Chief, Polygraph Division
NSA): “[T]he National Security Agency
and its predecessor agency has used the
polygraph as a condition of access for all
civilian employees since 1951. … [W]e
feel the polygraph is absolutely vital to the
security of the National Security Agency
and similar operations within the Defense
Department.”
Congressional Hearings
• David Raskin, PhD: “[T]here is no
scientific evidence that polygraph testing,
when used in the commercial sector for
screening, has any validity.”
Congressional Hearings
• John R. Bolton (Assistant Attorney
General): “Because the polygraph can
frequently provide accurate information
about a person’s veracity, the federal
government should not prohibit its use by
non-governmental employers.”
State Law
• At least 18 States Enacted Regulations
Governing Polygraph Use
• Lacked Uniformity
• Inconsistent Enforcement
• Circumvented
Congressional Efforts To Regulate
Polygraph
• 100th Congress
– House – ban all use except select industries
• manufacture and distribution of drugs, private security
– Senate – total ban on pre-employment but exception
for investigation of certain economic crime
APA Membership Trends Since EPPA
3000
2500
2000
1500
1000
500
0
1987
1989
1993
2008
• 1987 Includes 76 International Members
• 2008 Includes 465 International Members
Private
Law
Gov't
Total
US Private Sector Members 1986
US
Private
1,599
(55.4%)
APA
Members
2,886
US Private Sector Members 2008
US Private
798
(28.8%)
APA
Members
2764
EPPA
• PROHIBITIONS ON LIE DETECTOR USE
• Absent an exemption under the Act, EPPA prohibits “employers”
from “directly or indirectly”:
•
•
Requiring, requesting, suggesting, or causing any employee
prospective employee to take a lie detector test;
•
Using, accepting, or inquiring about the results of a lie
detector test;
•
Discharging, disciplining, discriminating against, denying
employment or promotion, or threatening to take adverse
employment action against an employee or prospective
employee based on the results of a lie detector test or for
refusing to take a lie detector test; and
•
Discriminating against an employee or prospective employee
for filing a complaint under the Act or otherwise exercising
rights under the act.
or
Definition of Lie Detector
• EPPA defines a lie
detector as “a
polygraph,
deceptograph, voice
stress analyzer,
psychological stress
evaluator, or any
other similar device”
used for rendering a
diagnostic opinion
regarding the honesty
or dishonesty of an
individual.
EPPA
What Needs To Be Proved To Establish An
EPPA Violation?
Employee Took or Was Asked To Take a Lie
Detector Examination
Lie Detector Examination Was A Factor In the
Employment Decision
EPPA
Defense
Employer Would Have Made Same Decision Even
if it Had Knot Known About the Examination
Worden v. Sun Trust Banks, Inc.
What if a law enforcement agency initiates
and administers the lie detector exam?
Employer Cooperation With Law
Enforcement Agency
• EPPA does not prevent employees from
co-operating with law enforcement
agencies who seek to administer a lie
detector examination to an employee for a
matter arising out of the employee’s
employment.
Employer Cooperation With Law
Enforcement Agency
• An employer’s cooperation must remain
passive in nature;
• The employer may not seek the examination or
actively participate in the examination;
• The receipt by an employer of information from
a polygraph test administered by police pursuant
to a criminal investigation of an employee is
prohibited.
WHO IS AN EMPLOYER UNDER EPPA
• The Act defines an employer as “any person acting
directly or indirectly in the interest of an employer in
relation to an employee or prospective employee.”
• EPPA applies to all employees of covered employers,
regardless of their citizenship status, and to foreign
corporations operating in the United States.
EFFECTS ON OTHER LAWS OR
AGREEMENTS
• EPPA does not preempt any provision of a state or local
law or any provision of a collective bargaining agreement
that prohibits lie detector tests or is more restrictive with
respect to the use of lie detector tests.
APPENDIX B
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Alaska
California
Connecticut
Delaware
Hawaii
Idaho
Illinois
Iowa
Maine
Massachusetts
Michigan
Minnesota
Montana
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Nebraska
Nevada
New Jersey
New York
Oregon
Pennsylvania
Rhode Island
Tennessee
Vermont
Virginia
Washington
West Virginia
Wisconsin
EXCLUSIONS AND EXEMPTIONS
– Exclusion for Public Sector Employees
– Exemption for Nat’l Defense and Security
– Exemption for Certain Manufacture and
Distribution of Controlled Substances
– Exemption for Certain Security Services
– Exemption for Investigation of Economic Loss
or Injury
Exclusion for Public Sector Employees
Exclusion for Public Sector Employees
• Excluded from the Act is the United
States government, any state or local
government, or any political subdivision of
a state or local government acting in the
capacity of an employer.
Exclusion for Public Sector Employees
“Political subdivision” is broadly
interpreted.
– Hossaini v. Western Missouri Med. Ctr.
Exclusion for Public Sector Employees
• The exclusion for public-sector employees
applies only to the employees of the
governmental entity. Except as is
provided in other sections of the Act, the
public-sector exclusion does not extend to
employees of private contractors and nongovernmental agencies.
Exclusion for Public Sector Employees
• Because public-sector employers are
exempt from EPPA, they can administer lie
detector tests on their employees and
other persons described herein without
complying with the restrictions placed on
permissible private-employer testing.
Exemption for National Defense and
Security
Exemption for National Defense and
Security
• The federal government may, under an
exemption for national defense and
security, administer polygraphs under
certain conditions to private employers
and contractors.
Exemption for National Defense and
Security
• Pursuant to this exemption, lie detector tests
may be administered in the performance of any
counter-intelligence function to the following:
– Any expert, consultant, or employee of any contractor
under contract with the Department of Defense; and
– Any expert, consultant, or employee of any contractor
under contract with the Department of Energy to the
extent that it is in connection with the atomic energy
defense activities of the Department of Energy.
Exemption for National Defense and
Security
• Additionally, the exemption permits
administration of a lie detector test by the
federal government in a performance of any
intelligence or counter-intelligence function to
any expert, consultant, or any individual
employed by, assigned to, or detailed to any of
the following agencies:
• National Security Agency;
• Defense Intelligence Agency; and
• Central Intelligence Agency.
Exemption for National Defense and
Security
An exemption is also given to tests by the
federal government to any employee of a
contractor of the Federal Bureau of
Investigation who is engaged in the
performance of any work under a contract with
the Bureau.
Exemption for National Defense and
Security
• Any lie detector tests performed under the
National Defense and Security exemption
must be administered in accordance with
the applicable Department of Defense
directives and regulations or other federal
government directives addressing the
issue.
Exemption for Drug Manufacturers and
Distributors
Exemption for Drug Manufacturers
and Distributors
• This exemption authorizes administration of a
polygraph to prospective employees who would
have direct access to the manufacture, storage,
distribution, or sale of any qualified controlled
substance.
• A qualified control substance is any controlled
substance listed in schedule I, II, III, or IV of
the Controlled Substances Act. 21 USC § 812.
Exemption for Drug Manufacturers
and Distributors
• It also authorizes administration of a polygraph exam to
a current employee if the following conditions are met:
• The test is administered in connection with an
ongoing investigation of criminal or other misconduct
involving loss or injury to the manufacture, distribution,
or dispensing of any qualifying controlled substance by
such employer; and
• The employee had access to the person or property
that is the subject of the investigation.
Exemption for Drug Manufacturers
and Distributors
• The investigation exception for this exclusion
differs from the “ongoing investigations of
economic loss or injury” as there is no
provision for a need of reasonable suspicion
under this exemption. As such, a drug
manufacturer would be permitted to polygraph
all current employees who have access to a
controlled substance stolen from the inventory.
Exemption for Drug Manufacturers
and Distributors
• The right to conduct polygraph
examinations of current employees under
the ongoing-investigation exception is only
in connection with the loss or injury, or
potential loss or injury, to the
manufacture, distribution, or dispensing of
a qualifying controlled substance.
Exemption for Drug Manufacturers
and Distributors
• A failure to abide by the limitations
applicable to the exclusion will result in
the loss of the exclusion.
Exemption for Employees
Providing Security Services
Exemption for Employees
Providing Security Services
• The Act provides an exemption, subject to
certain restrictions, to private employers for
certain employers in the armored car, security
alarm, and security guard fields.
Exemption for Employees
Providing Security Services
 To qualify, such employers must have as their primary business purpose
providing armored car, security alarm, or other uniformed or plain-clothes
security services, and such function must include the protection of:
Facilities, materials, or operations having a significant impact on the health
or safety of any state or political subdivision thereof or the national security
of the United States;
Currency, negotiable securities, precious commodities or instruments, or
proprietary information.
Exemption for Employees
Providing Security Services
• The exemption applies only to prospective
employees, though such employers may
administer polygraph tests to current
employees for ongoing investigations.
Exemption for Investigation of
Economic Loss or Injury
Exemption for Investigation of
Economic Loss or Injury
• Under the economic-loss exemption, an
employer may, pursuant to strict
requirements and conditions of the Act,
request an employee to submit to a
polygraph test.
• Permits polygraph test only.
Exemption for Investigation of
Economic Loss or Injury
• In order to qualify for this exemption, the
following must be met:
Exemption for Investigation of
Economic Loss or Injury
(1) The test is administered in connection with
an ongoing investigation involving economic
loss or injury to the employer's business, such as
theft, embezzlement, misappropriation or an act
of unlawful industrial espionage or sabotage;
Exemption for Investigation of
Economic Loss or Injury
(2) The employee had access to the property
that is the subject of the investigation;
Exemption for Investigation of
Economic Loss or Injury
• (3)The employer has a reasonable
suspicion that the employee was involved
in the incident or activity under
investigation;
Exemption for Investigation of
Economic Loss or Injury
• (4)The employer provides the examinee
with a statement, in a language
understood by the examinee, prior to the
test which fully explains with particularly
the specific incident or activity being
investigated and the basis for testing
particular employees and which contains,
at a minimum:
Exemption for Investigation of
Economic Loss or Injury
• (i) An identification with particularity of the specific
economic loss or injury to the business of the employer;
• (ii) A description of the employee’s access to the
property that is the subject of the investigation;
• (iii) A description in detail of the basis of the
employer’s reasonable suspicion that the employee
was involved in the incident or activity under
investigation; and
• (iv) Signature of a person (other than a polygraph
examiner) authorized to legally bind the employer; and
Exemption for Investigation of
Economic Loss or Injury
(5) The employer retains a copy of the
statement and proof of service for at least 3
years and makes it available for inspection by
the Wage and Hour Division on request.
Exemption for Investigation of
Economic Loss or Injury
• Exemption applies only to ongoing investigations of a
specific incident or activity.
– Exemption would not permit an employer to request that an
employee submit to a polygraph test to determine if random
thefts have occurred as such random testing is prohibited by the
Act.
– Unspecified statistical “shortages” would not qualify as on
ongoing investigation of a specific economic loss absent
additional evidence that specific items were missing through
intentional wrongdoing and that there is a reasonable suspicion
that the employee to be tested was involved.
Exemption for Investigation of
Economic Loss or Injury
• In order to qualify as a reasonable suspicion,
such suspicion must be based on an observable,
articulable basis in fact which indicates that a
particular employee was involved or responsible
for the economic loss.
• Access alone is an insufficient basis for
reasonable suspicion.
Exemption for Investigation of
Economic Loss or Injury
• An adverse employment action cannot be based solely upon the
analysis of polygraph tests or the refusal of the employee to take a
polygraph test without additional supporting evidence.
• Additional supporting evidence may include, but is not limited to:
– admissions or statements made by an employee before, during,
or following the polygraph examination;
– corroborating evidence from other sources;
– and/or the employee’s access to the property which is the
subject of the ongoing investigation and to which there was a
reasonable suspicion that the employee was involved.
Exemption for Investigation of
Economic Loss or Injury
• Failure to follow EPPA’s conditions for
pursuing a polygraph under the ongoinginvestigation exemption strictly will result
in a loss of the exemption.
– Escalante v. Rapid Armored Corp.
– Albin v. Cosmetics Plus N.Y., Ltd.
– Campbell v. Woodard Photographic, Inc.
RIGHTS OF THE EXAMINEE
RIGHTS OF THE EXAMINEE
(General Rights)
• Any polygraph examination shall consist of one or more
pre-test phases, an actual testing phase, and post-test
phases.
• No polygraph test, including all phases of the test, shall
be less than 90 minutes in length.
– The test period begins at the time the examiner begins
informing the examinee of the nature and characteristics of the
examination and the instruments involved and ends when the
examiner completes the review of the test results with the
examinee.
RIGHTS OF THE EXAMINEE
(General Rights)
• During all phases of the polygraph testing, the
person being examined has the following rights:
• (1) The examinee may terminate the test at any
time.
• (2) The examinee may not be asked any
questions in a degrading or unnecessarily
intrusive manner.
RIGHTS OF THE EXAMINEE
(General Rights)
 (3) The examinee may not be asked any questions
dealing with:
 (i) Religious beliefs or affiliations
 (ii) Beliefs or opinions regarding racial matters;
 (iii) Political beliefs or affiliations;
 (iv) Sexual preferences or behavior; or
 (v) Beliefs, affiliations, opinions, or lawful activities
concerning unions or labor organizations.
RIGHTS OF THE EXAMINEE
(General Rights)
• (4) The examinee may not be subjected to a test when
there is sufficient written evidence by a physician that
the examinee is suffering from any medical or
psychological condition or undergoing any treatment that
might cause abnormal responses during the actual
testing phase.
– To demonstrate sufficient written evidence of such a medical or
psychological condition, there must be, at a minimum, a
statement by a physician specifically describing the medical or
psychological condition and the basis of the physician’s opinion
that the condition or treatment might result in an abnormal
response.
RIGHTS OF THE EXAMINEE
(Pre-Test Phase Rights)
• Notice
The examinee must be provided at least 48 hours before
the time of the examination (excluding weekend days
and holidays) with:
– Written notice as to when and where the examination will take
place;
– That the examinee has the right to consult with counsel or an
employee representative before each phase of the test. Such
notice shall be received by the examinee at least 48 hours,
excluding weekend days and holidays, before the time of the
examination. An employee may agree, in writing, to a 24-hour
notice.
RIGHTS OF THE EXAMINEE
(In-Test Phase Rights)
• The examiner shall not ask any questions that
were not presented in writing for review prior to
the testing phase.
• If the examination is one for an ongoing
investigation, all relevant questions must pertain
to that ongoing investigation.
RIGHTS OF THE EXAMINEE
(Post-Test Phase Rights)
• Before an employer may take any adverse employment
action, the employer must conduct a further interview of
the examinee on the basis of the test results.
• The examinee must be given a written copy of any
opinions or conclusions rendered in response to the test
as well as the questions asked during the test with the
corresponding charted responses.
• The employee is entitled to a copy of the entire
examination charts recording the employee’s
physiological responses and not just the examiner’s
written report.
Qualifications of Examiners
• The following qualifications are required to administer
examinations pursuant to EPPA:
•
•Have a valid current license, if required by the state in which the test is to
be conducted;
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•Carry a bond or insurance policy of a minimum of $50,000;
•
•Administer no more than five polygraph examinations in any one calendar
day;
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•Administer no polygraph examination which is less than 90 minutes in
duration;
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•Any opinions or conclusions regarding truthfulness of the subject must be
rendered in writing, based solely on the polygraph test results.
• Disclosure of
Test
Information
and
Preservation of
Records
Disclosure of Test Information and
Preservation of Records
• Records regarding polygraph examinations are
to be maintained by the employer for a period of
three (3) years.
Disclosure of Test Information and
Preservation of Records
• Disclosure of any information obtained during a
polygraph test is strictly limited and may be disclosed
only to:
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The examinee or an individual specifically designated in writing by the
examinee to receive such information;
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The employer that requested the polygraph test pursuant to the
provisions of the Act;
•
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Any court, governmental agency, arbiter, or mediator pursuant to an
order from a court of competent jurisdiction for production of such
information;
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The secretary of labor or the secretary’s representative when
specifically designated in writing to receive such information.
Penalties
Civil Penalties
$10,000 for each violation
Reinstatement, promotion, back pay and benefits
Penalties
Civil Action
$$$ Damages
Compensatory Damages
Emotional Distress
Punitive Damages (?)
Attorney Fees
Jury Verdicts
Lyles v. Flagship Resort Dev. Corp
$4,076,445.00
The End