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Employee Polygraph Protection Act

§ 8.18
Key Point 8-18. Federal law prohibits employers that are engaged in interstate commerce (regardless of the number of employees) to require or even suggest that an employee or prospective employee submit to a polygraph examination. There is no exemption for religious organizations. A very limited exception exists for "ongoing investigations" into employee theft.
A. Background

The Employee Polygraph Protection Act (EPPA),[131] 29 U.S.C. § 2001 et seq. which was enacted by Congress in 1988, prohibits any "employer" (defined as an employer "engaged in or affecting commerce") from doing any one of the following three acts:

(1) directly or indirectly, to require, request, suggest, or cause any employee or prospective employee to take or submit to any lie detector test;
(2) to use, accept, refer to, or inquire concerning the results of any lie detector test of any employee or prospective employee;
(3) to discharge, discipline, discriminate against in any manner, or deny employment or promotion to, or threaten to take any such action against—(A) any employee or prospective employee who refuses, declines, or fails to take or submit to any lie detector test, or (B) any employee or prospective employee on the basis of the results of any lie detector test. …

A church is subject to the Act if it is "engaged in or affecting commerce." There is no requirement that an employer have a minimum number of employees. Whether or not churches and other religious organizations are engaged in "commerce" is a question that is addressed in section 8-09 of this chapter.

Tip. The Act not only prohibits covered employers from requiring that employees take polygraph exams, but it also prohibits an employer from requesting or suggesting that an employee or prospective employee take such an exam.
B. An Important Exception for "Ongoing Investigations" into Employee Theft

The Act contains a few narrow exceptions. One permits employers to ask employees to submit to a polygraph exam if they are suspected of theft and there is an ongoing investigation. Here are the details of this exception:

[This Act] shall not prohibit an employer from requesting an employee to submit to a polygraph test if—

(1) the test is administered in connection with an ongoing investigation involving economic loss or injury to the employer's business, such as theft, embezzlement, misappropriation, or an act of unlawful industrial espionage or sabotage;
(2) the employee had access to the property that is the subject of the investigation;
(3) the employer had a reasonable suspicion that the employee was involved in the incident or activity under investigation; and
(4) the employer executes a statement, provided to the examinee before the test, that—(A) sets forth with particularity the specific incident or activity being investigated and the basis for testing particular employees, (B) is signed by a person (other than a polygraph examiner) authorized to legally bind the employer, (C) is retained by the employer for at least 3 years, and (D) contains at a minimum—(i) an identification of the specific economic loss or injury to the business of the employer, (ii) a statement indicating that the employee had access to the property that is the subject of the investigation, and (iii) a statement describing the basis of the employer's reasonable suspicion that the employee was involved in the incident or activity under investigation.[132] 29 U.S.C. § 2006(d).
Tip. Know the details of the "ongoing investigation" exception. Under very limited circumstances, you can request that an employee take a polygraph exam if you suspect the employee of theft and you are conducting an ongoing investigation. Do not rely on this exception without fully complying with all of the requirements quoted above. Also, consult with legal counsel to be sure the exception is available to you.
Case studies
  • A church board suspects the church's volunteer treasurer of embezzling several thousands of dollars of church funds. The treasurer is called into a board meeting, and is told "you can clear your name if you submit to a polygraph exam." Does this conduct violate the Employee Polygraph Protection Act? Possibly not. The Act only protects "employees," and so a volunteer treasurer presumably would not be covered. However, if the treasurer receives any compensation whatever for her services, or is a "prospective employee," then the Act would apply. Because of the possibility that volunteer workers may in some cases be deemed "employees," you should not suggest or request that they take a polygraph exam without the advice of legal counsel.
  • Same facts as the previous case study, except that the church suspects a full-time secretary of embezzlement. Can it suggest that the secretary take a polygraph exam? Only if all the requirements of the "ongoing investigation" exception apply. These include: (1) the test is administered in connection with an ongoing investigation involving economic loss or injury to the employer's business, such as theft or embezzlement; (2) the employee had access to the property that is the subject of the investigation; (3) the employer had a reasonable suspicion that the employee was involved in the incident or activity under investigation; and (4) the employer executes a statement, provided to the examinee before the test, that—(A) sets forth with particularity the specific incident or activity being investigated and the basis for testing particular employees, (B) is signed by a person (other than a polygraph examiner) authorized to legally bind the employer, (C) is retained by the employer for at least 3 years, and (D) contains at a minimum—(i) an identification of the specific economic loss or injury to the business of the employer, (ii) a statement indicating that the employee had access to the property that is the subject of the investigation, and (iii) a statement describing the basis of the employer's reasonable suspicion that the employee was involved in the incident or activity under investigation.

The EPPA provides that an employer that violates the Act is liable to the employee or prospective employee for "such relief as may be appropriate, including, but not limited to, employment, reinstatement, promotion, and the payment of lost wages and benefits." A court may also award damages based on "emotional distress," and punitive damages.

Key Point. Damages awarded for violating the Employee Polygraph Protection Act may not be covered under a church's liability insurance policy. This is another reason for church leaders to assume that the Act applies to their church, and to interpret its provisions prudently.
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