by Paul D. Seyferth1
I. Introduction
On December 27, 1988 Congress passed the Employee Polygraph Protection Act (EPPA).2 The EPPA generally prohibits most private employers from using polygraph tests either for pre-employment screening or for random testing during the course of employment.3 An employer can request an employee to submit to a polygraph test if "the test is being administered in connection with an ongoing investigation involving . . . such [losses] as theft [or] embezzlement."4 The employer can request a test in connection with an ongoing investigation only if it has a "reasonable suspicion that the employee was involved in the incident," and only if the employer provides the employee with a written statement describing the basis of the reasonable suspicion.5
The EPPA also imposes other requirements to protect the rights of employees, including a requirement that the employee be furnished with written notice that describes the test and outlines the employee's rights if the test is not conducted in accordance with the EPPA's requirements.6 The EPPA provides for a private right of action by employees when rights are violated under the EPPA. A civil action can be brought in any federal or state court of competent jurisdiction.7 The U.S. Department of Labor has promulgated regulations to carry out the EPPA.8 The EPPA applies to most private sector employers; however, it does not apply to the federal government or any state or local governments.
Unlike many other federal acts that regulate the workplace, former employees are also protected from discrimination under the EPPA. For instance, if an employee quits in lieu of taking a lie detector test, the employer cannot provide a bad reference because of the employee's refusal to be tested or because the employee filed a complaint, testified in an EPPA-related proceeding, or otherwise exercised an EPPA right.9
II. Historical Background of the EPPA
The law banning the use of polygraph testing in the private workplace developed primarily because of concerns about the reliability of the tests. There is much debate as to the accuracy and efficacy of the polygraph test results. For instance, former President Richard Nixon once said (when looking for information leaks in the White House), "I don't know much about polygraphs, and I don't know how accurate they are, but I do know they scare the hell out of people."10 This quote typifies the ambivalence most persons have for such testing.
The polygraph is composed of a combination of devices that measure certain physical data. In 1895, an Italian psychiatrist and criminologist named Cesare Lombroso made the unprecedented claim that he could "detect a lie" by monitoring a person's blood pressure and "reading" the changes in it. 11 Lombroso asserted that by understanding the typical criminal responses and physical characteristics, he could distinguish "criminal types" from the rest of society.12 More than 100 years later, his claims continue to shape society's perceptions of polygraphs and account for their popularity.13
Today's polygraph is designed to measure and record physiological changes in the examinee's body. A sphygmograph (wrapped around the upper arm) records changes in blood pressure. Two pneumograph tubes (attached around the upper and lower chest) record changes in respiratory patters, and two electrodes (attached to the index and second fingers) record changes in perspiration of the skin. All of the instruments are connected to a pen register that simultaneously records the physiological changes on a chart. The pen register draws four graphs on the polygraph chart. Two of the graphs chart the examinee's respiration pattern. A third graph charts the examinee's heartbeat, blood pressure and pulse rate, and the fourth chart (from the electrodes) measures the examinee's increase or decrease in perspiration. The examiner reviews the subject's physiological responses to a set of structured questions and makes a decision as to whether or not the subject is telling the truth. 14
For law enforcement agencies, polygraphs are a useful investigative tool that enables them to screen possible suspects and focus their resources effectively. However, results are not generally admissible as evidence and police cannot compel suspects to take polygraph tests without their consent. Prior to the enactment of the EPPA, federal law regulated the use of polygraph machines in law enforcement, but did not control their use in the private workplace. As polygraph tests became popular, many private employers were administering them. In the wake of this, researchers began to question the accuracy of the machine that was dictating peoples' employment fate, and in the late 1970s and early 1980s several studies concerning the validity of polygraph tests revealed the lie detector's limitations. Subsequently, Congress enacted the Employee Polygraph Protection Act . . . in response to justified concerns that employers were . . . misusing lie detectors or their derivatives . . . and were too frequently relying on inaccurate, inconclusive or unfounded lie detector results to make employment decisions." 15
In general terms, the EPPA defines "lie detector" test as a "polygraph, deceptograph, voice stress analyzer, psychological stress evaluator, or any other similar device (whether mechanical or electrical) that is used, or the results of which are used, for the purpose of rendering a diagnostic opinion regarding the honesty or dishonesty of an individual." 16 The EPPA does not apply to paper-and-pencil testing or medical tests that are used to determine the presence or absence of alcohol or controlled substances in bodily fluids.
III. Who is Subject To the Act ?
A. Employers Covered By The Act
The act covers employers "engaged in or affecting commerce or in the production of goods for commerce." 17 The concept of "affecting commerce" is interpreted broadly by the courts. In regulations interpreting the EPPA, the U.S. Department of Labor states that "virtually all employers are deemed subject to the provisions of the Act, unless otherwise exempt" under the act. 18 Foreign corporations operating in the United States are also subject to the act for actions that take place in the U.S. and relate to the administration of lie detector tests administered at sea or in other countries. 19
Under the act, an employer includes "any person acting directly or indirectly in the interest of an employer in relation to an employee or prospective employee." 20 For instance, employment agencies, placement services, and vocational trade schools are considered employers under the act, with respect to individuals they refer to a potential employer, when the referring entities have reason to know that the employer will perform unlawful testing. 21 In contrast, as is shown in the next section, a polygraph examiner is not usually considered to be an employer.
B. Polygraph Examiners Subject To The Act
If an examiner acts "in the interest of an employer in relation to the employee," he is subject to suit under 29 U.S.C. § 2005(c)(1). 22 An independent polygraph examiner cannot be considered an employer under the act, and therefore subject to suit, unless he did " more than simply administer the polygraph test." 23
In Fallin v. Mindis Metals, Inc., 24 for instance, the court held that the mere administration of a polygraph test at the direction of the employer did not make the polygraph examiner liable as an employer under the EPPA. The court listed factors useful in determining whether the examiner exerts some control over the employer's compliance with the EPPA. The factors included: (1) who determined the employees to be examined; (2) under what circumstances the tests were to be administered; and (3) whether the examiner decided if an employee was to be disciplined as a result of the test, or whether he just reported the test results to the employer. 25
Courts also apply the "economic reality test" to determine if an examiner has gone beyond the role of an independent entity and, thus, controls the employer's compliance with the EPPA. In del Canto v. ITT Sheraton Corp., 26 the court considered whether a union and union representative were subject to liability. The court denied the employee's claim against his union and the union's executive secretary-treasurer because neither the union nor the secretary-treasurer exerted control over the employer's compliance with the EPPA. The court reasoned that the union acted in the employee's interest by recommending a polygraph examiner who was more expensive than what the employer wanted.
C. The Employer's Administrative Requirements
There are two primary administrative requirements for most employers under the EPPA. First, each employer is required to post and maintain a poster (prepared by the Department of Labor) summarizing the provisions of the EPPA. The employer should display it in the place where notices to employees are customarily posted. 27 Second, employers are required to keep all records necessary for the administration of the EPPA. 28
If an employer fails to post notice, it may be assessed up to $100 per day in civil penalties. Other violations of the EPPA could result in civil penalties of up to $10,000. 29
IV. Exemptions from the EPPA
There are some limited circumstances in which employers are still allowed to use polygraph tests. Employers who are conducting ongoing investigations, security firms, and drug manufacturers may have the right to request a polygraph; however, these entities do not have the right to deny employment, discharge employees or otherwise discriminate against any employee based solely on the results of the polygraph test.
A. The Ongoing Investigation Exception
The ongoing investigation exemption is the single exception that private employers can use to check employee honesty. If an employer is investigating an economic loss or an injury to the company, it may ask an employee to take a polygraph test. The loss can include " theft, embezzlement, misappropriation, or an . . . industrial espionage or sabotage." 30 The ongoing investigation must relate to a specific incident or activity. The employer cannot use a polygraph to determine whether or not a theft occurred. Moreover, in order to justify polygraph testing, the employer must show that "the employee had access to the property that is the subject of the investigation."31 The employer must also show there is reasonable suspicion implicating the employee, and that reasonable suspicion has to be based on something other than just access or opportunity.32 Information from a co-worker about an employee's behavior or conduct can be a basis for reasonable suspicion; the mere fact that an employee had opportunity, however, is not enough. Additionally, accidents in the workplace or losses due to lawful union activity do not justify polygraph testing.
Before testing, the employer must deliver to the examinee a statement setting "forth with particularity the specific incident or activity being investigated and the basis for testing" that particular employee.33 Someone with legal authority to bind the employer must sign the statement and the employer must retain the statement for at least three years.34
With all of the above conditions, not surprisingly, employers have still had trouble with meeting the requirements of the " ongoing investigation exemption." For instance, this exemption failed for the employer in Lyle v. Mercy Hospital Anderson 35 because the hospital didn't meet the procedural elements listed in 29 U.S.C. § 2006(d)(4). The hospital was investigating an alleged theft of money from the locker of a physician with staff privileges. The court held that the hospital did not qualify for the exemption because it could not " demonstrate that it suffered an 'economic loss' [to its business] from the theft." 36
In Burton v. Gerland's Food Fair, Inc., 37 the court held that while access or opportunity, standing along, does not constitute a basis for reasonable suspicion, the totality of circumstances surrounding the access or opportunity – such as unauthorized or unusual nature, or the fact that access was limited to a single individual – may constitute a factor in determining whether there is a reasonable suspicion. In Burton, the plaintiff was a bakery manager at a grocery store one evening while no manager was on duty and no other employee had the combination to the safe. That day, a grocery checker returned his cash till to the manager's office inside the courtesy booth. The next day, approximately $3,000 was missing. During this time, the plaintiff visited the courtesy booth several times. In Burton, the court found there was enough evidence to support the store's claim that it had a "reasonable suspicion" that the plaintiff was involved in the loss. 38
B. Cooperating with Police Investigations
The prohibition against requiring employees or prospective employees to submit to tests does not apply to situations in which the employer is cooperating with police in the course of a police investigation into criminal activity, as long as the employer's conduct is merely "passive" in nature. 39
If an employer reports criminal activity involving economic loss to the police, and the police determine it is necessary to administer a polygraph to an employee, the employer can be involved in the investigation without violating the act. For instance, the employer can allow the employee to be tested at the premises, release the employee from work to go to the police station for the test, or engage in other similar types of passive cooperation. 40
In Mennen v. Easter Stores, 41 for instance, the court held that an employer's mere passive cooperation with the police in granting permission for an employee to take a polygraph examination did not violate the EPPA. The test took place as part of the normal course of a police investigation of a theft from a grocery store. The police requested the employee take the polygraph as part of its investigation and the employee consented. Even though the police also needed the employer's consent to request the employee to take the exam, and the employer could have vetoed the test, the store's mere permission did not violate the act. The court explained that the employer had not crossed the line between cooperating with the police and actively participating in the investigation. 42
C. Examinee's Rights During Test
If one of the above exemptions apply, and an employee is to be given a polygraph test, the EPPA sets out the examinee's specific rights during the administration of the test. Prior to the examination, the employee has the right to "reasonable written notice of the date, time, and location of the test," and the right to consult with an attorney or employee representative before the test is administered. 43 The written notice must inform the examinee of the following:
An employer may not test an employee who provides sufficient written evidence by a physician that an abnormal response may occur during the test due to a medical condition.46 This evidence would have to include a physician's statement "specifically describing the examinee's medical or psychological condition or treatment and the basis for the physician's opinion that the condition or treatment might result in such abnormal responses."47
V. Discipline or Discharge on the Basis of Test Results
The EPPA provides that "it shall be unlawful for an employer . . . to use, accept, refer to, or inquire concerning the results of any lie detector test of any employee or prospective employee."48 It specifically prohibits employers from disciplining, discharging, or discriminating against any employee or applicant based on the employee's polygraph test results, or for exercising any rights afforded by the act.
To support a cause of action under the act, there must be evidence that the employer discriminated against or fired an employee as a result of the polygraph. In Raines v. Shoney's Inc., 49 the plaintiff stated she submitted to a polygraph after her employer discovered $600 missing from the cash register. She " subsequently quit [her job] because she was verbally abused" by her manager. The court granted summary judgment to the employer, because the employee could not show an adverse employment action was based on the results of the examination.
In Escalante v. Rapid Armored Corp.,50 the employee was fired after he refused to take a polygraph. The court held that in order to establish an actual injury, the plaintiff must show the decision to terminate him was made, at least in part, because of the employer's dissatisfaction with his response to the request that he submit to a polygraph test. Under the EPPA, it is unlawful for a private employer to require or request any employee to take a lie detector test; however, the mere fact that an employer asks an employee to take a lie detector test does not, by itself, give rise to liability since, without more, there is no actual injury.51
The causation requirement under the EPPA, however, appears to be more stringent than the causation requirements under other employment discrimination statutes. In one of the first cases to be tried to 52 a jury under the EPPA, the court instructed the jury that it must find the results of the polygraph examination were the basis for the adverse employment action. 53
VI. Disclosure of Test Results
The EPPA provides that it shall be unlawful for an employer to use the results of any lie detector test of any employee or prospective employee. 54 An employer may only disclose test results and information acquired from the test to the following:
1) The examinee or someone designated in writing by the examinee to receive the information;If the test results contain an admission of criminal conduct, the employer may disclose the information to the appropriate governmental agency without a court order. The polygraph examiner may also disclose test information – without identifying the examinee – to another examiner for consultation and review. 552) The employer requesting the test;
3) Any court, governmental agency, arbitrator, or mediator pursuant to a court order; and
4) The Secretary of Labor or their representative (when designated in writing).
VII. Waivers
An employee cannot waive any EPPA procedures or any of their rights under the EPPA, by contract or otherwise, unless the waiver is part of a written agreement that the parties signed to settle a pending action. 56
In Long v. Mango's Tropical Café, Inc., 57 undercover agents hired by a bar observed the plaintiff, a barmaid who called herself "Killer," taking money from several patrons without recording the sales. They also reported she was exhibiting behavior to indicate she was "high." Based on the report, the bar suspended Killer and asked her to take a polygraph exam. She agreed to the exam and signed a "Release to Take Polygraph Test," in which she agreed to submit to a polygraph examination and also agreed that reasonable suspicion existed. The court held this release was not enough to constitute "reasonable suspicion" under the EPPA. Even though the release was not part of a settlement agreement in the litigation, and the employee didn't waive any rights or procedures to which she was entitled, the totality of the evidence showed the employer had reasonable suspicion required by the EPPA.
VIII. Damages Under the EPPA
Employees or applicants may bring civil actions against employers in federal or state court within three years of the date of an alleged violation of the EPPA. Additionally, the Secretary of Labor can bring an action in federal district court to seek injunctive relief or to restrain violations of the EPPA.
Federal district courts have the power to grant appropriate legal or equitable relief, including granting employment, promotions, reinstatement or the payment of lost wages and benefits. U.S.C. 2005 (c)(1). The court has the discretion to award costs and attorney fees to the prevailing party (other than the United States). 58 Courts interpret "appropriate legal relief" under the EPPA to include compensatory damages, damages for emotional distress, and prejudgment interest. 59
In Mennen, the court considered the damages available under Title VII of the Civil Rights Act of 1964 60 and other civil rights and employment-regulated statutes to determine the scope of appropriate relief under the EPPA. 61 The court awarded past and future wages from the date of the employee's constructive discharge, plus pre-judgment interest on the back pay. The evidence also supported an award of damages for emotional distress resulting from the employer's violation of the EPPA.
Courts have also denied attorney fees due to special circumstances. In U.S. Dept. of Labor v. Rapid Robert's Inc., 62 the court held that, although an award of attorney's fees to the prevailing party is expressly authorized under the EPPA, an award to the employer as the prevailing party and against the Department of Labor could be set aside under the Equal Access to Justice Act (28 U.S.C.A. § 2412) because it was unjust due to "special circumstances." The employer clearly violated the EPPA when it performed 15 polygraph exams and failed to give proper notice to the employees; however, it escaped liability because the Department of Labor did not prosecute its action under the appropriate interim regulations in effect at the time of the exams. Because the employer prevailed on a technicality, the appellate court did not allow the employer to recover its attorney fees, because adding to the employer's windfall by requiring the government to pay attorneys' fees and costs would be patently unjust. 63
In Suttle v. Dominion Bank of Middle Tennessee, 64 an employee who was the target of an internal investigation for theft brought an action against her employer and made a claim for mental and emotional injuries in connection with the administration of a polygraph exam. Additionally, her husband brought a claim for loss of consortium. The plaintiff insisted she suffered from the outrageous conduct of the employer during the investigative procedures. She claimed her manager "stared icily" at her and " did not stop his interrogation when [she] became emotional and started crying." The court felt the evidence showed "some lack of sensitivity in the methods and procedure" of the employer, but it found no "actual intent to harm [the] plaintiff." The court held that "[I]nternal investigations are inherently stressful to the person or persons under suspicion," and the employee's claims were dismissed.
IX. Conclusion
Employers need to be very wary of the use of polygraph tests in the employment setting. Not only are there numerous restrictions on the use of such tests, there are also a number of cases throughout the country that have held against the employer in the polygraph setting. If any employer determines that polygraph testing is appropriate in the workplace setting, legal counsel should be consulted to avoid the pitfalls addressed in this article.
Endnotes
1 Mr. Seyferth is a member of the Kansas City office of Husch & Eppenberger, LLC, where he focuses his practice on the representation of management in employment litigation throughout the United States. He is a 1987 graduate of the University of Michigan Law School. The author wishes to thank Ms. Elaine Lane for her substantial contribution to this article.
2 29 U.S.C. §§ 2001 et seq. (EPPA) (2001).
3 29 U.S.C. § 2002 (2001).
4 29 U.S.C. § 2006(d) (2001).
5 Id.
6 29 U.S.C. § 2007(b) (2001).
7 29 U.S.C. § 2005(c)(2) (2001).
8 29 U.S.C. § 2004(a) (2001).
9 29 C.F.R. § 801.8(c) (2001).
10 The Machine, the Techniques, and Other Tests, 23 Gov't Empl. Rel. Rep. (BNA) No. 1130 pt. II, at 3 (1985).
11 Michael Tiner & Danial J. O'Grady, Lie Detectors in Employment 23 Harv. C.R.-C.L. L. Rev. 85, 85-86 (1988).
12 Id.
13 Id.
14 The Machine, the Techniques, and Other Tests, 23 Gov't Empl. Rel. Rep. (BNA) No. 1130 pt. II, at 3 (1985).
15 Veazey v. Communications & Cable of Chicago, Inc., 194 F.3d 850, 855 (7th Cir. 1999).
16 29 U.S.C. §§ 2001 et seq. (2001).
17 29 U.S.C. § 2002 (2001).
18 29 C.F.R. § 801.3(a) (2001).
19 29 C.F.R. § 801.3(b) (2001).
20 29 U.S.C. § 2001(2) (2001).
21 29 C.F.R. § 801.8(b) (2001).
22 Rubin v. Tourneau, Inc., 797 F. Supp 247, 250 (S.D. N.Y. 1992).
23 James v. Professionals' Detective Agency, Inc., 876 F. Supp 1013, 1015 (N.D. Ill. 1995).
24 865 F. Supp. 834, 840 (N.D. Ga. 1994).
25 Id. at 840.
26 865 F. Supp 927, 930 (D. D.C. 1994).
27 29 U.S.C. § 2003 (2001).
28 29 U.S.C. §2004(b) (2001).
29 29 U.S.C. § 2005(a) (2001).
30 29 U.S.C. § 2006(d)(1) (2001).
31 29 U.S.C. § 2006(d)(1)(2) (2001).
32 29 U.S.C. § 2006(d)(3) (2001).
33 29 U.S.C. § 2006(d)(4)(A) (2001).
34 29 U.S.C. § 2006 (d)(4)(c) (2001).
35 876 F. Supp. 157, 161 (S.D. Ohio 1995).
36 Id.
37 No. 14-97-01002-CV (Tex. App. 1998).
38 Id.
39 29 C.F.R. § 801.4(b) (2001).
40 29 C.F.R. § 801.4(b) (2001).
41 951 F. Supp. 838 (N.D. Iowa 1997).
42 Id. at 853.
43 29 U.S.C. § 2007(b)(2)(A) (2001).
44 29 U.S.C. § 2007(b)(2)(D)(ii) (2001).
45 29 U.S.C. § 2007(b)(1)(C) (2001).
46 29 U.S.C. § 2007(b)(1)(D) (2001).
47 29 C.F.R. § 801.22(b)(4) (2001).
48 29 U.S.C. § 2002(2) (2001).
49 909 F. Supp. 1070, 1075 (E.D. Tenn. 1995).
50 702 N.Y.S.2d 755 (N.Y. Sup. Ct. 1999).
51 Id. at 2.
52 14 Missouri Lawyer's Weekly No. 34 (August 21, 2000) at p. 20.
53 Id.
54 20 U.S.C. § 2002(2) (2001).
55 29 C.F.R. § 801.35(4) (2001).
56 29 U.S.C. § 2005(d) (2001).
57 972 F. Supp. 655, 659 (S.D. Fla. 1997).
58 29 U.S.C. §§ 2005(c)(2)-2005(c)(3) (2001).
59 Mennen v. Easter Stores, 951 F. Supp. 838, 864 (N.D. Iowa 1997).
60 42 U.S.C. §§ 2000e, et seq.
61 Id.
62 130 F.3d 345, 349 (8th Cir. 1997).
63 Id. at 349.
64 Appeal No. 01-A-01-9304-CV-00173 (Tenn. Ct. App.). Filed 1993.