Business Employers

THE EMPLOYEE POLYGRAPH PROTECTION ACT – (EPPA)

Our professional services may be provided at your location anywhere in the State of Texas or elsewhere as permitted by law. Our equipment is portable but the client must provide suitable examination rooms. Of course the employee can be scheduled at our DFW lab. A Spanish speaking examiner from our staff may be scheduled but a fee is attached.  For budgeting purposes in a travel related situation, the client will pay the cost of travel and accommodations. Each examiner is only permitted to conduct four examinations per day.

 

  • Polygraph
    Agreement
  • Client
    Suggestions
  • 24-48
    Hour Notice

 

 

Suggestions

First of the elements offered here is the employer’s checklist for gathering data to support the employee’s notice. This notice should contain data that documents that the eligibility for examination does exist.

Second of the elements is a sample 48-Hour notice that may be used to notify the employee of the invitation to take a polygraph examination. It is in memo format for placement on the company letterhead. It may contain some basic instructions to facilitate the examination process. It should also include the name of the Polygraph firm plus the location and time for examination. If more than one employee is scheduled allow for a 2-hour examination period. It is best that the employees to be tested do not travel together. It should be noticed that the amended regulations from the Labor Department permit the employee to waive the 48-hour notice and accept examination in 24 hours. That letter is best issued under the name of the executive who has the authority to direct personnel matters.

Third of the elements offered is a sample agreement between the company and the licensed polygraph examiner. It is addressed to the examiner on company letterhead. It should make reference to EPPA and identify the name and social security number of the person to be examined and the time slot allotted to that individual. If other elements associated with examination are requested they should be specified.

Examples are:

  1. The taking of a sworn affidavit containing a statement about the incident;
  2. The collection of a urine specimen to conduct of a drug screen based on cause; and,
  3. The administration of a “paper and pencil” personality inventory.

It should be noted that payment is expected at the time of examination. It may be in the form of a company check and delivered the day prior to examination or by the first examinee of the day. Since the time is blocked, there is still a charge for no shows.

Employers Checklist For Gathering Data To Support Employee’s Notice

  • Narrative description of a specific incident or activity;
  • Date and time period in which the incident or activity occurred;
  • Location where it happened;
  • Define the object of loss (e.g. money, negotiable, instruments, merchandise, trade secrets, customer good will, contract, and endangerment, etc.);
  • Estimate the dollar value of the loss;
  • Type of loss under investigation (e.g. theft, fraud, forgery, sabotage, espionage, etc.);
  • State the basis of the employer’s suspicion (e.g. behavior, information received, access capability with keys, combinations, codes, authority, etc.);
  • Other reasonable circumstances that can be verbalized;
  • List all persons who meet this criteria because they will all have to be examined;
  • Ensure that adding a person or deleting a person from the list cannot be perceived as discrimination.

CAN I ASK AN EMPLOYEE TO TAKE A POLYGRAPH TEST?

YES, under certain conditions an employer may ask personnel to submit to a polygraph examination. Such examinations are regulated and it is in the best interest of the company to carefully comply with the simple and logical steps.

A functional outline, about 29 CFR Part 801 EPPA of 1988, is listed below. But official details may be downloaded through the link at the bottom of the page.

REGULATORY QUESTIONS FOR AN EMPLOYER TO ADDRESS PRIOR TO A POLYGRAPH TEST

  • IS THIS PERSON A PAST, PRESENT OR FUTURE EMPLOYEE OF MINE?

  If there is an employer/employee relationship, then EPPA applies.

  • DO I HAVE A POSTER DISPLAYED AT WORK?

  Posted notice is required by EPPA for all covered employers.

LINK TO DEPARTMENT OF LABOR DEPARTMENT POSTERS

  • DO I HAVE A LOSS OR INJURY?

  Can I document an ongoing investigation that identifies a specific economic loss or injury to companies business’s. Loss can be direct or indirect. Examples of direct loss are theft, embezzlement, misappropriation, industrial espionage or sabotage. Examples of indirect loss are check-kiting or money laundering. Accidental loss may not be covered unless there is some deliberate or malicious act.

  • DO I HAVE A LEGITIMATE ONGOING INVESTIGATION?

  Does my company’s actions qualify as an internal “Ongoing investigation” associated with a specific loss or injury.

  • DID THE SUSPECTED PERSON HAVE ACCESS?

  Access to the targeted area, tools or objects related to the loss must be determined and fixed on the suspect.

  • IS THERE REASONABLE SUSPICION THAT A SPECIFIC PERSON DID THE DEED?

  You as the employer must be able to verbalize reasonable suspicion which has been determined through the ongoing investigation.

  • HAVE I INCLUDED ALL POTENTIAL SUSPECTS ON THE LIST?

The company representative who is conducting the ongoing investigation must be careful to include, in the list of suspects, all of the employees that had timely access by way of their presence, knowledge, skill or other appropriate situation.

**IF THE ANSWER IS YES TO ALL OF THE ABOVE THEN YOU MAY FORMALLY REQUEST THE PERSONNEL TO TAKE A TEST BY DOING THE FOLLOWING:

PROVIDE 48 HOUR WRITTEN NOTICE

The employer is to provide a formal notice to each person who is being requested to take the test:

(a) at least 48 hours {There is a permitted 24 hour waiver} prior to the test,
(b) but not including weekends or holidays,
(c) in a language they understand.

The notice must include at least the following minimal information:

  • The time, date and location of test;
  • A statement that examinee has the right to consult with counsel or an employee representative prior to the test;
  • The specific loss or injury identified;
  • Description of access to the incident site;
  • Description of reasonable suspicion that employee is involved;
  • Issued under the signature of person authorized to legally bind the employer.
  • Time and date of receipt of notice by employee verified by their signature.
  • Give the examiner a list of the names of those to be examined with a formal request for an examination date.

Retain a copy of the documentation for three (3) years to satisfy the report keeping requirements.

CONTINGENCY SITUATIONS

  • WHAT IF A PERSON REFUSES TO TAKE THE POLYGRAPH TEST?
    The employer cannot take any adverse action based soley on the refusal to submit to an exam. The other parties must have cleared the exam and the case facts remain the same or become stronger.
  • HOW ABOUT IF THEY CLAIM A DEBILITATING MEDICAL CONDITION?
    A documented legitimate medical condition may be grounds for refusal to take the test. The examiner may also determine that someone is not suitable for examination at that time.

AFTER ACTION CONSIDERATIONS

  • CAN I FIRE, OR TAKE OTHER ACTION, A PERSON WHO DOES NOT CLEAR THE POLYGRAPH?
    Yes, you may take adverse personnel action with documented supporting evidence. For example, additional information may surface from the investigation and examination process. The same factors leading to REASONABLE SUSPICION noted above could be supported by statements or admissions made by tested employees. Wisdom in making judgment is required before taking action.
  • DID I INTERVIEW THEM BEFORE TAKING ANY ACTION?
    Yes, the employer should further interview the employee and provide copies of test opinions or conclusions, including test charts if appropriate. This is required by EPPA of all covered employers.
  • HOW TO I CONTRACT A QUALIFIED POLYGRAPH EXAMINER?
    A competent examiner must be licensed if required by the host State and have a bond or liability insurance for a minimum $50,000 and preferably be a member of the American Polygraph Association. The employer should request of the examiner a cert to document this coverage, license and membership. Additional procedures are required of the polygraph examiner during the test.
  • WHO CAN I TELL ABOUT THE POLYGRAPH TEST?
    Management personnel of the employee where the disclosure is relevant to the carrying out of their job responsibilities. Written permission from the employee is required in most other instances.
  • WHAT IF I VIOLATE EPPA?
    Maximum $10,000 fine for each violation of EPPA and possible court action by employee.

Specific information can be found in the Federal Register dated March 4, 1991 entitled Part II Department of Labor Employment Standards Administration, Wage and Hour Division, 29 CFR Part 801, Application of the Final Rule.

LINK TO DEPARTMENT OF LABOR POLYGRAPH REGULATIONS

 

 

 

 

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