Polygraph Protection Act - Employee Privacy Rights Flashcards
Who is covered by the Employee Polygraph Protection Act(EPPA) and what is it prohibiting?
Who is EXEMPT?
COVERED - Private Employers engaged in COMMERCE - Bars most private employers from using lie detectors either for preemployment screening or DURING the course of employment.
EXEMPTIONS:
- All public sector employers are exempt
- Federal government permitted to test private-sector employees who have access to classified information
- Testing of members of intelligence services allowed
- Federal testing of FBI contractors allowed
- Testing allowed when drugs are involved
- Private employers conducting ongoing investigation involving economic loss or injury allowed to test those that are reasonably suspected of involvement in a workplace incident (e.g. theft, embesslement) BUT Employer cannot RANDOMLY test to see if thefts have occurred
- Private employers involved in security services allowed to test applicants
- Pharmaceutical manufactureres, distributors and dispensors
What are the penalties?
Up to $10,000 for EACH VIOLATION
What can an employee receive in remedies for Employer violation and how long do they have to bring their claim?
Statute of Limitations: 3 years
Employee Remedies:
- Legal or Equitable relief;
- being hired, reinstated, or promoted;
- lost wages and benefits; and
- costs and attorney fees
Preemption issue with Polygraph Protection Act?
Any state or local law or CBA that is MORE RESTRICTIVE is not preempted.
What is the statute of limitations for the Employee Polygraph Protection Act?
3 years
What poster or notification requirements are required under the Employee Polygraph Protection Act (EPPA)?
Poster. Every employer subject to EPPA shall post and keep posted on its premises a notice explaining the Act. 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. There is no size requirement for the poster.
The EPPA poster is available in English and Spanish. Posting of the EPPA poster in Spanish is optional.
Notices. There are specific notices that must be given to examinees and examiners in instances where polygraph tests are permitted:
When a polygraph test is administered pursuant to the economic loss or injury exemption, the employer is required to provide the examinee with a statement prior to the test, in a language understood by the examinee, which fully explains the specific incident or activity being investigated and the basis for testing particular employees. The statement must contain, at a minimum, the following information:
- An identification with particulars of the specific economic loss or injury to the business of the employer
- A description of the employee’s access to the property that is the subject of the investigation
- A detailed description of the basis of the employer’s reasonable suspicion that the employee was involved in the incident or activity under investigation
- The signature of a person (other than the polygraph examiner) authorized to legally bind the employer
Every employer who requests an employee or prospective employee to submit to a polygraph examination pursuant to the ongoing investigation, drug manufacturer, or security services EPPA exemptions must provide:
- Reasonable written notice of the date, time, and place of the examination and the examinee’s right to consult with legal counsel or an employee representative before each phase of the test
- Written notice of the nature and characteristics of the polygraph instrument and examination
- Extensive written notice explaining the examinee’s rights, including a list of prohibited questions and topics, the examinee’s right to terminate the examination, and the examinee’s right to file a complaint with the Department of Labor alleging violations of EPPA
- Employers must also provide written notice to the examiner identifying the persons to be examined.
