Using Polygraph Tests on Employees

People who own a small business with a few employees are often subject to one form of theft or the other. This theft can often take the form of petty cash or possibly any of the goods that you stock in your business. While it is often easy to come to the conclusion that this theft has taken place at your business, it is not so easy to determine who engaged in this theft, especially in the absence of any physical evidence. Which is exactly why many small business owners sometimes turn to the polygraph test to try and determine who exactly is responsible for these thefts.

While in principle it may seem like a good idea to conduct these tests, according to The federal Employee Polygraph Protection Act  (the “EPPA”,) which is essentially a law that prohibits any employer from using the results of a polygraph test to discipline an employee, or alternatively from sanctioning such an employee for refusing to submit to a polygraph test. There are however a few exceptions. In the event that an employee violates this EPPA act, they can have a $10,000 civil penalty fine levied against them, in addition to being able to be slapped with a civil liability lawsuit by the employee.

One of the exceptions previously spoken about, is when there is an active investigation being conducted into a case of suspected theft or embezzlement. However, even in situations of embezzlement or theft, to which an active ongoing investigation is being carried out, there are many restrictions and ways in which this exception can be violated, thus rendering it invalid.

Using Polygraph Tests on Employees

The specific restriction, with regards an ongoing investigation, can only apply to the individual who has been suspected of carrying out this theft and who has had full access to the property in question where the item was stolen from.

Haven said that, the only time a polygraph may be lawfully administered is:

When the employer executes a statement, which he or she makes available to the examinee well in advance of the test, stating:

  • The specific activity or incident which is being investigated, and the basis for which the employee is to be administered with a polygraph test.
  • The signatory of an individual, besides the polygraph tester, who is authorized to legally bind the employer.
  • That for a minimum of three years, the statement will be retained by the employer.
  • Contains at a minimum:
    1. The specific economic loss or injury that the business of the employer has suffered.
    2. A statement or proof that the employee had access to the property that is the subject of the investigation.
    3. A statement specifying the reasonable suspicion that the employer has against the employee with regards the activity under investigation.

In situations where the employer does not have a “reasonable suspicion,” as well as not having additional supporting evidence of the embezzlement or theft, but still goes ahead and administers a polygraph test on his employees, it is still very possible for the employer to be slapped with a civil liability suit or alternatively with a penalty.

Additionally, the EPPA makes it mandatory that the employer provide the employee who is being subjected to this polygraph test, with several rights throughout all the phases of this polygraph test. Some of these rights include:

  • The right to allow the examinee end the test at any point in time.
  • The right not to be asked any questions related to his or her beliefs regarding race or religion
  • Providing the examinee with an advanced written notice of the date, time and venue of the test. In addition to the test questions as well as what rights this person has under the EPPA.

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