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In the event of an economic loss or injury to the employer’s business, an employee may be subjected to consensual polygraph testing as a part of the ongoing investigation and this is allowed as per the Employee Polygraph Protection Act (EPPA). However, for an employee to be subjected to the testing; the employer should have reasonable doubt that the injury or loss was caused by the employee and the employee had access to the area or objects in question. The polygraph tests can be used on Federal, State, and local government employees, but private employers cannot subject their employees to this test in the hiring and terminating process. Below are a few questions regarding the EPPA that have been answered: Q. If an employee in California was made to take up a polygraph test by a manager, can this be considered as a violation of state or federal law if he/she was a suspected of stealing? If the employee decides to sue the manager, would the employee be eligible for punitive damages?
An employer would not be able to demand an employee to give up his/her rights. If there is a violation by the employer; an employee may sue him/her in the state or federal court for legal or equitable relief. However, a case must be filed within three years of the breach of the EPPA. The Secretary of Labor may levy a penalty of $10,000.00 for each instance of a breach and also issue an injunction against future actions. The employee may be able to claim back wages and lost benefits as well as punitive damages for defamation/slander as a result of disclosure of information of the polygraph test to potential employers. Q. In order for an employee to retain his/her employment, can an employer in Illinois demand that the employee take up a polygraph test?
As per the EPPA, a private employer should not subject an employee to polygraph tests in the hiring and terminating process. Further, one may not test an employee as a condition of employment. Polygraph tests may be conducted by private employers under the following circumstances as an exemption to the EPPA:
1. reasonable doubt of an employee’s involvement in a workplace incident that resulted in economic loss where the employee had access to the property or person under investigation
2. prospective employees who protect facilities, materials or operations affecting health or safety, national security, or currency and other like instruments
3. prospective employees of pharmaceutical and other firms authorized to manufacture, distribute, or dispense controlled substances who will have direct access to such controlled substances. Q. Before the final paycheck is issued; can an employer wait for the employee to sign a reason for termination form? Is this a legal practice? The employer is based in California.
As per the California Labor Law, the paycheck cannot be withheld by the employer due to the aforementioned reason. If the employee was terminated, the final paycheck would need to be given to the employee at the time of termination itself. Q. If an employee was involved in a verbal dispute, can this employee be subjected to a polygraph test?
One would need to take note that there was no theft, embezzlement, or misappropriation involved. If there is no theft, embezzlement, misappropriation, or an act of unlawful industrial espionage or sabotage; then a private employee may not be subjected to a polygraph test. The court would decide if there was a fraud, economic loss, or economic injury. Q. A detention officer is suspected to have supplied the inmates with drugs. What options does this officer have as he/she is required to take a polygraph test?
Federal, State, and local government employees are not exempt from taking polygraph tests. A detention officer is considered to be a government employee. However, he/she has the right to receive a written notice before the testing, right to deny or discontinue a test and have the right to demand that the test results be kept confidential and not disclose it to unauthorized people. Q. The results of a polygraph test are the only proof that an employer would have against an employee who has been asked to take this test. Can this be considered as legal in Illinois?
In the event of an economic loss investigation only, private employers may subject an employee to a polygraph test. If the employee refuses to take the test, he/she may not be terminated. In addition, the employer cannot mention about the test in the employee’s future job references. The polygraph would not be acceptable in criminal charges. As per the EPPA regulations, a crime that does not bring about an economic loss to the employer (drug sales on employer property, objects from an employee locker are stolen) cannot be a reason for testing. Regular inventory or cash register shortages also may not qualify for testing. Losses caused by accidents, also known as unintentional conduct, would not be grounds for testing. One may ask an employment lawyer regarding doubts on EPPA.
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