From: Federal Law Alerts

Federal Employee Screening Requirements

Introduction

Congress and various state legislatures have regulated the use of polygraph tests in the workplace. Congress believed that employees and applicants should not be required to answer intrusive questions, and inaccurate test results may unfairly victimize honest employees and applicants. Consequently, employers cannot use polygraph tests unless they meet certain narrow exceptions and follow a complex set of procedures. This chapter details the law on the use of polygraph and other types of tests used to determine an individual’s honesty.

The U.S. Equal Employment Opportunity Commission (EEOC) governs the application of federal antidiscrimination laws to employer tests and other selection procedures to screen applicants for hire and employees for promotion. There are many different types of tests and selection procedures, including cognitive tests, personality tests, medical examinations, credit checks, and criminal background checks. The use of tests and other selection procedures can be a very effective means of determining which applicants or employees are most qualified for a particular job. However, use of these tools can violate the federal antidiscrimination laws if an employer intentionally uses them to discriminate based on race, color, sex, national origin, religion, disability, or age (40 or older). Use of tests and other selection procedures can also violate the federal antidiscrimination laws if they disproportionately exclude people in a particular group by race, sex, or another covered basis, unless the employer can justify the test or procedure under the law. This chapter provides assistance on some common issues relating to the federal antidiscrimination laws and the use of tests and other selection procedures in the employment screening process.

The Employee Polygraph Protection Act

The federal Employee Polygraph Protection Act of 1988 (EPPA), located at 29 U.S.C.A. §§ 2001 – 2009 and 29 C.F.R. 801 – 801.75, prohibits most private employers from using lie-detector tests either for pre-employment screening or during the course of employment. Employers generally may not require or request any employee or job applicant to take a lie-detector test or discharge, discipline, or discriminate against an employee or job applicant for refusing to take a test or for exercising other rights under the EPPA.

The EPPA regulates not only polygraph tests but also voice-stress analyses and other tests designed to determine honesty by measuring a person’s physiological responses. The EPPA also prohibits deceptographs, psychological stress evaluators, and any similar devices — whether mechanical or electrical — used to determine the honesty or dishonesty of an individual.

A lie detector 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. A polygraph is 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 an individual.

Pre-Emption

The EPPA does not pre-empt any provision of a state or local law or any provision of a collective-bargaining agreement that prohibited lie-detector tests or is more restrictive with respect to the use of lie-detector tests. For example:

If a state prohibits the use of polygraphs in all private employment, then polygraph examinations could not be conducted.
A collective-bargaining agreement that provides greater protection to an examinee would apply in addition to the protections provided in the EPPA.
More stringent licensing or bonding requirements in a state law would apply in addition to the federal bonding requirement.

However, industry exemptions and applicable industry restrictions, provided in the EPPA, would pre-empt less restrictive exemptions established by state law for the same industry. For example, the random testing of current employees in the drug industry is not prohibited by state law, but is limited by the EPPA to tests administered in connection with ongoing investigations. Thus, employers must comply with both federal and state laws.

Covered Employers

The EPPA generally prevents employers engaged in interstate commerce from using lie-detector test either for pre-employment screening or during the course of employment, with certain exemptions. Consequently, the EPPA applies to most private employers. However, the law does not cover federal, state, and local governments. Additionally, the EPPA broadly defines an employer as any person acting directly or indirectly in the interest of an employer in relationship to an employee or prospective employee.

Exemptions

Federal, state, and local governments are excluded from EPPA coverage. Additionally, lie-detector tests administered by the federal government to employees of federal contractors engaged in national security intelligence or counterintelligence functions are exempt. 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:

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.
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.
To prospective employees of pharmaceutical and other firms authorized to manufacture, distribute, or dispense controlled substances that will have direct access to such controlled substances, as well as current employees who had access to persons or property that are the subject of an ongoing investigation.

Prohibitions

Per EPPA protections, covered employers are prohibited from all of the following:

Directly or indirectly requiring, requesting, suggesting, or causing an employee or prospective employee to take or submit to any lie-detector test.
Using, accepting, referring to, or inquiring about the results of any lie-detector test of an employee or prospective employee.
Discharging, disciplining, discriminating against, denying employment or promotion, or threatening to take any such action against an employee or prospective employee for their refusal or failure to take a test, on the basis of the results of a test, for filing a complaint, for testifying in any proceeding or for exercising any rights afforded by the EPPA.

Former Employees

The EPPA prohibitions against discrimination also apply to former employees of an employer. For example, an employee may quit rather than take a lie-detector test. The employer cannot discriminate or threaten to discriminate in any manner against that person (such as by providing bad references in the future) because of that person’s refusal to be tested, or because that person files a complaint, institutes a proceeding, testifies in a proceeding, or exercises any right under the EPPA.

Waivers

The rights and procedures provided by the EPPA may not be waived by contract or otherwise, unless such waiver is part of a written settlement agreed to and signed by the parties to the pending action or complaint under the EPPA.

Testing Procedures

Where polygraph examinations are allowed, they are subject to strict standards for the conduct of the test, including the pretest, testing, and post-testing phases.

Qualified Examiners

An examiner must have a valid and current license if required by a state in which the test is to be conducted, and must maintain a minimum of $50,000 bond or professional liability coverage.

Employee Rights and Required Notice

An employee or prospective employee must be given a written notice explaining the employee’s or prospective employee’s rights and the limitations imposed, such as prohibited areas of questioning and restriction on the use of test results. Additionally, an employee or prospective employee may:

Refuse to take a test.
Terminate a test at any time.
Decline to take a test if they suffer from a medical condition.

Employees or prospective employees also have the right to not be asked questions concerning any of the following:

Religious or political beliefs and affiliations.
Any matters relating to sexual behavior.
Beliefs or opinions on racial matters.
Beliefs, affiliations, opinions, or lawful activities regarding unions or labor organizations.

The results of a test alone cannot be disclosed to anyone other than the employer or employee/prospective employee without their consent or, pursuant to court order, to a court, government agency, arbitrator, or mediator.

Under the exemption for ongoing investigations of workplace incidents involving economic loss, a written or verbal statement must be provided to the employee prior to the polygraph test that explains the specific incident or activity being investigated and the basis for the employer’s reasonable suspicion that the employee was involved in such incident or activity.

Where polygraph examinations are permitted under the EPPA, they are subject to strict standards concerning the conduct of the test, including the pretest, testing, and post-test phases of the examination.

Prohibition Against Disclosure

The EPPA strictly prohibits the unauthorized disclosure of any information obtained during a polygraph test by any person other than the examinee, directly or indirectly, except as follows:

A polygraph examiner or an employer may disclose information acquired from a polygraph test only to the following:
- The examinee or an individual specifically designated in writing by the examinee to receive such information.
- The employer that requested the polygraph test (including management personnel of the employer where the disclosure is relevant to the carrying out of their job responsibilities).
- Any court, governmental agency, arbitrator, or mediator pursuant to an order from a court of competent jurisdiction requiring the production of such information.
- The Secretary of Labor or the secretary’s representative, when specifically designated in writing by the examinee to receive such information.
An employer may disclose information from the polygraph test at any time to an appropriate governmental agency without the need of a court order only where the information disclosed is an admission of criminal conduct.
A polygraph examiner may disclose test charts without identifying information (but not other examination materials and records) to another examiner(s) for examination and analysis, provided that such disclosure is for the sole purpose of consultation and review of the initial examiner’s opinion concerning the indications of truthfulness or deception. Such action would not constitute disclosure under the EPPA provided that the other examiner has no direct or indirect interest in the matter.

Posting and Recordkeeping

Every employer subject to the EPPA is required to post and keep posted on its premises a notice explaining the EPPA, as prescribed by the U.S. Secretary of Labor. 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. Copies of this required poster may be obtained from local offices of the Wage and Hour Division or on their Web site.

The following records must be kept for at least three years from the date a polygraph examination was conducted (or from the date the examination was requested if no examination was conducted):

Each employer who requests an employee to submit to a polygraph examination in connection with an ongoing investigation involving economic loss or injury must retain a copy of the statement that sets forth the specific incident or activity under investigation and the basis for testing that particular employee.
Each employer who administers a polygraph examination under the exemption in connection with an ongoing investigation of criminal or other misconduct involving, or potentially involving, loss or injury to the manufacture, distribution, or dispensing of a controlled substance, must retain records specifically identifying the loss or injury in question and the nature of the employee’s access to the person or property that is the subject of the investigation.
Each employer who requests an employee or prospective employee to submit to a polygraph examination pursuant to any of the exemptions must retain a copy of the written statement that sets forth the time and place of the examination and the examinee’s right to consult with counsel.
Each employer must identify in writing to the examiner persons to be examined pursuant to any of the exemptions and must retain a copy of such notice.
Each employer who retains an examiner to administer examinations pursuant to any of the exemptions must maintain copies of all opinions, reports, or other records furnished to the employer by the examiner relating to such examinations.
Each examiner retained to administer examinations to persons identified by employers under any exemption must maintain all opinions, reports, charts, written questions, lists, and other records relating to polygraph tests of such persons. Additionally, the examiner must maintain records of the number of examinations conducted during each day in which one or more tests are conducted and, with regard to tests administered to persons identified by their employer under an exemption, the duration of each test period.

Both employers and examiners must keep these required records safe and accessible at the place(s) of employment/business or at one or more established central recordkeeping offices where employment/examination records are customarily maintained. If the records are maintained at a central recordkeeping office other than in the place or places of employment/business, such records must be made available within 72 hours following notice from the secretary or an authorized representative.

All records must be available for inspection and copying by the secretary or an authorized representative. Information for which disclosure is restricted must be made available to the secretary or the secretary’s representative where the examinee has designated the secretary, in writing, to receive such information, or by order of a court of competent jurisdiction.