The Employee Polygraph Protection Act of 1988 (EPPA) regulates – and in most cases prohibits – the use of polygraph (lie detector) and other types of electronic “honesty tests” as a condition of hiring or as a basis for employment decisions. The law also protects employees and job applicants from adverse personnel actions based on the results of polygraphs and similar tests.
Who is Covered
The EPPA applies to all private employers except in specific cases (see Exceptions below). “Employers” include all persons or agents acting on behalf of or in the interest of the employers, whether directly or indirectly. Therefore, it also covers employment agencies, executive search firms, recruiters, and the like.
Exceptions: The law exempts certain types of businesses from the general polygraph ban and permits all employers to use polygraphs for certain limited purposes. In the few situations where lie detector tests are allowed, polygraphs are the only type of mechanical or electrical test that may be used.
Industry exemptions. Employers in the following industries are allowed to use the polygraph for pre-employment screening:
- Public sector employers including the U.S. government, any state or local government, and any political subdivision of the government including defense and national security (CIA, FBI, etc.).
- Any contractors or consultants used by national security and defense agencies, however, the government must administer such tests.
- Private security firms – including providers of armored car services; persons who design, install and maintain security alarm systems; and any uniformed or plain clothes security personnel.
- Drug companies – job applicants may be tested if they could have access to the manufacture, storage, distribution, or sale of controlled substances.
Basic Provisions/Requirements
The EPPA prohibits most private employers from using lie detector tests either for pre-employment screening or during the course of employment.
Employers are generally prohibited from requiring or requesting any employee or job applicant to take a lie detector test, and from discharging, disciplining, or discriminating against an employee or job applicant for refusing to take a test or for exercising other rights under the Act. Employers may not use or inquire about the results of a lie detector test or discharge or discriminate against an employee or job applicant on the basis of the results of a test, or for filing a complaint, or for participating in a proceeding under the Act.
Where polygraph examinations are permitted, they are subject to strict standards concerning the conduct of the test, including the pretest, testing and post-testing phases. An examiner must also be licensed and bonded or have a professional liability coverage. The Act strictly limits the disclosure of information obtained during a polygraph test.