By Arielle K. Brandt | Cohen Grossman, Attorneys at Law
The guidelines and protocols on polygraphs and employees are sheltered under the Employee Polygraph Protection Act (EPPA). Employers who require a job applicant to take a polygraph test, or discriminate against a candidate for declining to take a polygraph test, can be reprimanded. A job candidate who is required to take a polygraph test may file a complaint and obtain damages. Know your rights!
There are two exceptions to the rule described above:
- The EPPA does not apply to the government.
- Applications for a job at a security firm, security guard, armored car guard or driver, pharmaceutical company, or at a pharmacy and the job includes dispensing or distributing drugs, may require you to take a polygraph test. This second exception has specific requirements set out by the EPPA; any variation from those requirements can be considered a violation of the EPPA.
The EPPA allows employers to request that their employees take polygraph tests. There are a few specific circumstances where this may come up. The most common is financial loss from theft or embezzlement of business assets. The EPPA requires employers to follow a specific standard if they wish to polygraph employers in such a situation.
The rule requires an employer to give you notice in writing, that:
- it has suffered an economic loss in detail;
- you had access to the property and detail the type of access you had; and
- it indicate what reasonable suspicion it has that you were involved and describe any and all evidence. Additionally, employers are required to comply with specific requirements under the EPPA before requiring any employee to participate in a polygraph.
The employer must do all of the following items in writing:
- give notice to the employee of the date, the time, the place of the polygraph test;
- give notice that the employee has the right to consult with a lawyer at each phase of the test;
- provide the employee with notice as to the nature and characteristics of the machine or instrument to be used in the examination;
- inform the employee in a notice of his or her rights;
- provide a list of prohibited questions and topics;
- inform the employee that he or she is free to terminate the examination; and
- inform the employee that he or she may file a complaint with the Department of Labor for any violation of his or her employee rights under the EPPA;
- the notice must be signed by the employee and by a person authorized by the employer to bind him or her.
Employees have a right to file a complaint for damages for Wage and Hour violations with the Department of Labor or the Courts. Additionally, the Secretary of Labor can then take action to stop your employer from violating your rights under the EPPA. Finally, the Secretary of Labor can also assess civil monetary penalties of up to $10,000 per violation.
If you believe your rights under the EPPA have been violated, contact Cohen Grossman, Attorneys at Law at (407) 478.4878 immediately.