(a) Section 3 of EPPA provides that, unless otherwise exempt
pursuant to section 7 of the Act and Secs. 801.10 through 801.14 of this
part, covered employers are prohibited from:
(1) Requiring, requesting, suggesting or causing, directly or
indirectly, any employee or prospective employee to take or submit to a
lie detector test;
(2) Using, accepting, or inquiring about the results of a lie
detector test of any employee or prospective employee; and
(3) Discharging, disciplining, discriminating against, denying
employment or promotion, or threatening any employee or prospective
employee to take such action for refusal or failure to take or submit to
such test, on the basis of the results of a test, for filing a
complaint, for testifying in any proceeding, or for exercising any
rights afforded by the Act.
(b) An employer who reports a theft or other incident involving
economic loss to police or other law enforcement authorities is not
engaged in conduct subject to the prohibitions under paragraph (a) of
this section if, during the normal course of a subsequent investigation,
such authorities deem it necessary to administer a polygraph test to an
employee(s) suspected of involvement in the reported incident. Employers
who cooperate with police authorities during the course of their
investigations into criminal misconduct are likewise not deemed engaged
in prohibitive conduct provided that such cooperation is passive in
nature. For example, it is not uncommon for police authorities to
request employees suspected of theft or criminal activity to submit to a
polygraph test during the employee's tour of duty since, as a general
rule, suspect employees are often difficult to locate away from their
place of employment. Allowing a test on the employer's premises,
releasing an employee during working hours to take a test at police
headquarters, and other similar types of cooperation at the request of
the police authorities would not be construed as ``requiring,
requesting, suggesting, or causing, directly or indirectly, any employee
* * * to take or submit to a lie detector test.'' Cooperation of this
type must be distinguished from actual participation in the testing of
employees suspected of wrongdoing, either through the administration of
a test by the employer at the request or direction of police
authorities, or through employer reimbursement of tests administered by
police authorities to employees. In some communities, it may be a
practice of police authorities to request employer testing of employees
before a police investigation is initiated on a reported
incident. In other communities, police examiners are available to
employers, on a cost reimbursement basis, to conduct tests on employees
suspected by an employer of wrongdoing. All such conduct on the part of
employers is deemed within the Act's prohibitions.
(c) The receipt by an employer of information from a polygraph test
administered by police authorities pursuant to an investigation is
prohibited by section 3(2) of the Act. (See paragraph (a)(2) of this
section.)
(d) The simulated use of a polygraph instrument so as to lead an
individual to believe that an actual test is being or may be performed
(e.g., to elicit confessions or admissions of guilt) constitutes conduct
prohibited by paragraph (a) of this section. Such use includes the
connection of an employee or prospective employee to the instrument
without any intention of a diagnostic purpose, the placement of the
instrument in a room used for interrogation unconnected to the employee
or prospective employee, or the mere suggestion that the instrument may
be used during the course of the interview.
[56 FR 9064, Mar. 4, 1991; 56 FR 14469, Apr. 10, 1991]
