F.A.Q.

Frequently Asked Questions (FAQ)


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What is the Employee Protection Act of 1988?
Who does the EPPA cover?
When can my boss ask me to take a polygraph test?
Can my boss ask us to take a polygraph test if he has suffered an economic loss?
What information my boss has to tell me when I am asked to take a polygraph test?
Can my boss fire me for only refusing to take a polygraph test?

What if I take the polygraph test?
Can my boss fire me if I fail the polygraph test?
What happens if I am fired for failing the test, but my boss did not follow the EPPA procedures?
What can I recover under the EPPA?
How can the EPPA help me?


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Q
What is the Employee Protection Act of 1988? Go to top
A

The Employee Polygraph Protection Act of 1988 (EPPA) is a little known federal polygraph law that is a powerful tool at the disposal of employees (not employed by the Federal government, State & Local agencies) that are asked to take, or who take, lie detector tests, including polygraph tests, at the request of their EMPLOYERS. The law basically prohibits, employers from asking that employees take, or giving polygraph tests at work, except under very limited circumstances.

Q
Who does the EPPA cover? Go to top
A

The law only covers private employers and employees. It does not apply to employee that work for a local agency, State or Federal Government.

Q
When can my boss ask me to take a polygraph test? Go to top
A
The EPPA has four different "exemptions" under which private employers can give polygraph tests to their employees. Three of the exemptions deal with employers that are involved in national defense, security services, and controlled substances. The one exemption that is available to all private employers, and the one that you are like to encounter, is called the "ongoing investigation" exemption. this exemption permits employers to ask, and give, polygraph test to employees when they are investigating an economic loss, such as the theft of merchandise, missing money, etc.
Q
Can my boss ask us to take a polygraph test if he has suffered an economic loss? Go to top
A
No. In order for your boss to legally ask you to take a polygraph test, he/she will have to show three things: (1) that there in fact was an economic loss, (2) that you had access to the property or item that was lost, and (3) that your boss has "reasonable suspicion" that you were involved in the economic loss. Your boss has to satisfy all three tests before you can be asked to take a polygraph test.
Q
What information my boss has to tell me when I am asked to take a polygraph test? Go to top
A
In writing, your boss has to tell you about the economic loss, the access that you had, and about the "reasonable suspicion" that he/she has that you were involved in the "economic loss".
Q
Can my boss fire me for only refusing to take a polygraph test? Go to top
A
No, unless your boss has "additional supporting evidence" that you were involved in the economic loss.
Q
What if I take the polygraph test? Go to top
A
If you take the test, the EPPA has provisions that are designed to protect your rights before, during, and after you take the polygraph test. That means that your boss must carefully follow the polygraph law and ensure that you are given all the information that the EPPA says you must be given before, during, and after the test is given to you.
Q
Can my boss fire me if I fail the polygraph test? Go to top
A
No. Your boss cannot fire you only for failing a polygraph test. For your boss to fire you, or take any other adverse employment action after you fail a polygraph test, he/she must have additional supporting evidence and provide you with information the the EPPA says you must be given before any adverse action is taken against you.
Q
What happens if I am fired for failing the test, but my boss didn't follow the EPPA procedures? Go to top
A
Then your firing is illegal and you can sue your boss for violating the EPPA. The EPPA is a very strict law. If your boss fails to follow even one of the requirements of the law, then the "ongoing investigation"exemption is unavailable to your boss to justify the polygraph test and the whole test is illegal.
Q
What can I recover under the EPPA? Go to top
A
If you file a suit and win, the EPPA provides for recovery of damages such as back pay, benefits, etc., and courts have held that you can also recover compensatory damages for things like emotional distress, humiliation, and embarrassment. courts have also held that you can recover punitive damages, if appropriate, which are damages that the employer has to pay to you as punishment for its conduct. Recoverable damages could be substantial and depend on the facts of the case. The EPPA also provides that if you win, the employer has to pay your attorney fees and costs.
Q
How can the EPPA help me? Go to top
A
The EPPA helps you by giving you the possibility of fighting back, especially if you are fired after a polygraph test. Most private employees wok as "at will" employees, which basically means that you are employed at the will of your employer and you can be fired at any time, be it for a good or a bad reason, or no reason at all, as long as the reason is not illegal (examples of illegal reasons are firings based on your race, national origin, religion, age, or disability). If the reason is not illegal, you can be fired no matter how unjust the reason. That is why most employees that are fired have no case against their employers. If you were given  a polygraph test, however, your employer may have given you a powerful tool to strike back.