Van Arsdale Polygraph Services
"Nothing but the truth"

    Can you force employees to take a Polygraph?
    An employer would have two reasons to polygraph employees:

    Pre-employment verification of information

    Preemployment Polygraphs in Law Enforcement, and Other Companies

    The Employee Polygraph Protection Act of 1988 prohibits much, but not all pre-employment
    polygraph testing. Testing of employees is permitted to solve an employer's "economic
    loss." In most cases, no employer may require a prospective or current employee to take a
    polygraph examination as a condition of employment or continued employment. However,
    no State prohibits polygraph testing in all settings. Most of these states make exceptions
    for testing of certain occupational groups. We have found that a thorough private
    investigation provides a satisfactory alternative to polygraph in
    resolving internal employee matters without the liabilities associated
    with a narrowly constructed Federal Law.

    In case of pre-employment, polygraphs can only be mandatory for those prospective
    employees involved with large amounts of money, security, guards of armored car
    personnel, law enforcement agencies and companies that manufacture, distribute or
    dispense drugs and controlled substances. EPPA does not affect testing for attorneys or
    local, state or federal agencies.

    Suspicion of theft

    Suspicion of Theft in the Workplace.

    You would be well served to call us before you approach this topic with
    your employees.

    We have forms, as well as copies of material published by the U.S. Department of Labor to
    help you through this situation. Recent decisions by The U.S. Department of Labor and the
    courts prevent a polygraph examiner from offering advice or opinions regarding whether
    or not polygraph may be used in compliance with EPPA under specific circumstances. You
    must arrive at this decision based upon your understanding of the law, compliance with
    your company’s policies, and whatever other sources of information you choose. Many
    employers consult an attorney for advice in these matters before proceeding. I suggest
    you review the documents provided from the U.S. Department of Labor carefully. The
    penalties for violations of the act are somewhat severe.

    The testing fee is  $350. If more than 2 tests are required, the fee is reduced to $250 each,
    for the third and subsequent tests relating to the same incident or loss. But, once you
    have consulted with us,  have the forms in your hands, and begin the process we suggest,
    you might find the problem solves itself. This consultation fee is $500, and will be used a
    deposit for the tests.
                                                                 

    The following information is supplied by the American Polygraph Association:

    In general, businesses cannot request, suggest or require any job applicant to take a pre-
    employment polygraph examination. Secondly, businesses can request a current employee
    to take a polygraph examination or suggest to such a person that a polygraph examination
    be taken, only when specific conditions have been satisfied. However, the employer
    cannot require current employees to take and examination, and if an employee refuses a
    request or suggestion, the employer cannot discipline or discharge the employee based
    on the refusal to submit to the examination.

    What are the conditions that an employer must meet in order to ask a current employee to
    take a polygraph? The American Polygraph Association is furnishing the following
    information, which it believes is in good faith, and conforms with the Department of Labor's
    Regulations relating to polygraph tests for employees. This information is considered only
    as a guideline to assist in complying with the Act and Regulations, and the American
    Polygraph Association is disclaiming any liability in connection therewith. Employers
    should develop their own forms, using their own company name, and should also review
    their final forms through their own legal counsel.

    I. Checklist for the Employer

    1. The incident must be an ongoing, specific investigation.

    2. It must be an identifiable economic loss to the employer.

    3. Obtain a copy of the Employer Polygraph Protection Act of 1988.

    4. Provide the employee with a written statement that includes: a. Identification of the
    company and location of employee b. Description of the loss or activity under investigation
    c. Location of the loss d. Specific amount of the loss e. Type of economic loss f. How the
    employee had access to the loss Note: access alone is not sufficient grounds for
    polygraph testing g. What kind of reasonable suspicion there is to suspect the employee
    of being involved in the loss

    5. The Statement provided to employee MUST be signed by someone other than the
    polygraph examiner, who is authorized to legally bind the employee, and MUST be retained
    by the employer for at least 3 years.

    6. Read the Notice to Examinee to the employee, which should be signed, timed, dated and
    witnessed.

    7. Provide the employee with 48 hours advanced notice (not counting weekends or
    holidays) to the date and time of the scheduled polygraph test.

    8. Provide employee with written notice of the date, time and location of the polygraph
    test, including written directions if the test is to be conducted at a location other than at
    the place of employment.

    9. Maintain a statement of adverse actions taken against the employee following a
    polygraph test.

    10. Conduct an additional interview of employee prior to any adverse action following a
    polygraph test.

    11. Maintain records of ALL of the above for a minimum of 3 years.

    12. Employees may not waive their rights.

    13. Police and investigators are not exempt and must comply if they are conducting an
    employment related polygraph test, i.e., when conducting a polygraph test on an internal
    theft for a missing deposit. Information about a polygraph provided to the employer by a
    police officer or investigator is prohibited under the Act, since employers are not allowed
    to use, accept or inquire about the results.

    14. There is a $10,000 penalty for EACH violation of the law.

    15. Check out the credentials of the polygraph examiner that you use and verify that the
    examiner meets EPPA requirements. Never hesitate to ask for written proof of licensing,
    liability insurance, etc.

    16. Use your company letterhead on all forms you provide to the employee. Have your
    corporate attorney review your actions to assure your compliance of EPPA.

NOTHING CONTAINED ABOVE SHOULD BE CONSTRUED
AS SUPERCEDING CURRENT LAW
Employee Polygraphs
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