Employee Testing

Prior to 1986 in Washington State, employers could use the polygraph indiscriminately for pre-employment purposes and during their investigations into the misconduct of their employees. There were no restrictions on it’s use. In 1986, the Washington State legislature passed legislation which prohibited pre-employment testing within Washington State, but left intact employers abilities to use the polygraph during their internal investigations into employee misconduct of all kinds as long as the employee agreed to take the examination without coercion.

In 1988, the Federal Government enacted the Employee Polygraph Protection Act of 1988 (EPPA). This law superceded Washington State law and prohibited the use of polygraph by private employers in all but a few exceptions. The last remaining use of the polygraph by private employers is during their internal investigations into the theft of company property, money, goods and/or services.

The copy of the Employee Polygraph Protection Act of 1988 (EPPA) is available through the U.S. Department of Labor. This law will dictate your use of the polygraph during your investigations. It will explain the uses of the polygraph that are still acceptable and the details of your ability to use the polygraph during your internal investigations. You should have your attorney examine this law carefully and make a decision whether your intended use of the polygraph is exempted from the law.

A complete copy of the law is available on the internet at: http://www.dol.gov/dol/compliance/comp-eppa.htm

This law makes the use of the polygraph much more restrictive than in the past, but NOT IMPOSSIBLE. The American Polygraph Association commissioned F. Lee Bailey to create a series of forms to help private employers comply with this new law. There are five forms which we have provided below in PDF form for your review. As in many other areas, passage of federal regulations concerning polygraph has simply increased the amount of paperwork that must be used.

Bendiksen & Ball Polygraph will accept no liability for providing these forms to you or for your misuse of them which might result in your violation of EPPA. Violations of the Employee Polygraph Protection Act (EPPA) carry substantial fines from the Department of Labor and open your company up to law suits which can result in substantial monitory losses. Consult with your attorney prior to your decision to use the polygraph to resolve your current problem. Consult with your attorney when you are filling out these forms. The law can change rapidly and these forms may already be outdated. Consult with your attorney prior to taking any adverse action against any of your employees and prior to making employment decisions based upon the results of a polygraph test.

EPPA Forms

The Indemnification Agreement needs to be signed by an officer of your corporation before we can give a polygraph test. Simply put, your company agrees to indemnify Bendiksen & Ball Polygraph from any liability arising out of your company’s use of the polygraph other than an act of negligence or willful misconduct during the actual examination on the part of Bendiksen & Ball Polygraph or any of it’s employee’s or contract agents. For your information, Bendiksen & Ball Polygraph carries a Liability Insurance Policy to cover professional errors and omissions. This is a standard form used by all polygraph examiners and must be returned prior to the scheduling of any appointments.

The Employer's Statement to Employee is the document that the EPPA requires that you fill out and give to EACH employee you will be asking to take a polygraph test prior to the test. We would like EACH employee to bring a copy of this document to the examination for our files. Make copies of this original document for later use. This document must be given to the employee within 72 hours of the test to allow the employee ample time to contact an attorney or union representative for advice.

Employer's Notice of Test is written notification to Bendiksen & Ball Polygraph that you have decided to test an individual employee. This separate form, accompanied by a copy of "The Employer's Statement to Employee" which was given to the employee, should be mailed or brought to the test by each employee prior to the Examination.

Polygraph Examiner's Notice to Examinee is supplied for your information. A copy of this form will be given to the employee during the pre-test phase.

Notice to Employee is supplied for your information. This document is read to the examinee during the pre-test phase. A completed copy of this form will be given to the employee during the pre-test phrase in our offices.

Employer's Statement of Adverse Action is supplied for your use during the post test phase. This form is to be retained by you for your records.