Employee Polygraph Protection Act

The Employee Polygraph Protection Act was signed by President Reagan in 1988 and established the rules for the administration of polygraph tests. These are a set of restrictions that apply to private employees unless exemptions exist.

Employee Polygraph Protection Act of 1988

Employers who administer polygraph tests to their employees are restricted in their use by the Employee Polygraph Protection Act. Enforcement falls to the DOL (Department of Labor). Generally, the act keeps employers from using polygraph tests for screening (prior to employment) or during employment. There are exceptions. Similar devices to a polygraph are prohibited by the Act. Things like the deceptograph, psychological stress analyzer, voice stress evaluator, or any mechanical device used to make diagnosis as to the dishonesty or honesty of an employee or potential employee. These lie detectors are electrical or mechanical devices that record various changes in physical changes to make a diagnostic determination about the genuineness of someone. The physical changes can be electrodermal patterns, respiratory, and cardiovascular.

Who Is Affected by the Employee Polygraph Protection Act?

The Employee Polygraph Protection Act affects private businesses. Unaffected by the law are state, local, and federal government agencies. It’s obvious why these exceptions are necessary for police departments, school districts, and prison systems.

Exemptions in Employee Polygraph Protection Act:

  • Qualified businesses who are under contract with the government for specified activities like intelligence work.
  • Armored car personnel, nuclear facility workers, power plant employees, toxic waste disposal professionals, security officers, or any other employee whose job has significant impact on health or safety of the community.
  • The manufacturer, distribution or dispensing of controlled substances also makes the company exempt.

Polygraph tests, in general, are not allowed to be required, suggested, or requested by an employer or potential employer. If specific criteria are met then a business can insist that a polygraph test be administered. Unless the conditions are satisfied, an employer cannot threaten employees with discharge or disciplinary action unless the polygraph is taken.

Criteria an Employer Is Required to Meet to Do Polygraph Testing

The Employer checklist:

  • The episode must be part of a specific and ongoing investigation.
  • The result of the event must be economic loss.
  • The employer must have knowledge of the Employer Polygraph Protection Act.
  • The employer must give the employee a document.
  • The document MUST have signature of someone authorized to legally represent the employee, and MUST be engaged by employer for three years and is not the examiner.
  • The Notice to Examinee must be read aloud to the employee, which should be witnessed, signed and dated.
  • Provide the employee with advanced notice (at least 48 hours).
  • Provide the employee with documented notice of the time, date, and location of the examination, including directions to the location where it is to be conducted.
  • The employer must maintain a statement of adverse actions taken against the employee after a polygraph test.
  • Conduct additional interviews of the employee prior to any adverse action after a polygraph test.
  • Maintain records for a minimum of 3 years of all documents above.
  • Employees are not able to waive their rights.
  • Police and investigators are not allowed to share the results of their polygraph and employers are not allowed use or inquire about the results of the polygraph.
  • Violation of the law results in a ten-thousand dollar penalty for EACH individual violation of the law.
  • Ensure the credentials of the polygraph examiner. Ask for documentation of liability insurance, licensing, etc.
  • Company letterhead should be used on all forms provided to the employee. A corporate attorney should review actions to assure compliance with theEmployee Polygraph Protection Act.

Checklist for the Polygraph Examiner:

  • Give the employer a photocopy of Employee Polygraph Protection Act guidelines.
  • The examiner cannot assist the employer to determine who should be tested.
  • Ensure that there is a signed statement of advance notice provided to the employee.
  • Give employee a written clarification of the polygraph test and procedures. Employee should sign it and date it.
  • Read aloud, answer questions and explain the rights to the employee. Have it signed, timed and dated.
  • Advise the employee of taping and one-way mirrors.
  • Be insured for $50,000 or equivalent professional liability coverage.
  • Conduct no more than 5 polygraph tests per day.
  • Do not administer any polygraph that requires fewer than ninety minutes.
  • Give the employee the polygraph test questions in writing. Then have the examinee write out their replies and sign the question sheet.
  • Be licensed, if so required, in the state where the test is to be conducted.
  • Log the company name, employee name, date and times for all polygraph tests during the course of a day.
  • Share the results of the test with the employee and allow them an opportunity to explain any reactions.
  • Provide opinion of non-deception or deception in writing.
  • Results must NOT be based on behavior but only be based on the polygraph test results.
  • Only provide information relevant to the original purpose of the test to the employer.
  • Keep photocopies of ALL documents for a minimum of three years.
  • Give a photocopy of documents to the employee upon request.
  • Give a photocopy of documents to the employer when results are deceptive.
  • Give the Department of Labor with copies of the same, within seventy-two hours, at the request of the Secretary of Department of Labor, or other authorized person of Department of Labor.

 

Prohibitions on the Use of Lie Detectors

Employers are not allowed to suggest, request, or require that an employee or potential employee take any kind of polygraph (or lie detector) examination. In addition, an employer is not allowed to inquire about the results, use, refer to, or accept the results of the test. This means that an employer cannot promote, threaten, discipline, discriminate against, discharge, deny employment or threaten any of those actions against a potential employee or a current employee.

Employee Polygraph Protection Act of 1988 Exemptions

Employers who administer polygraph tests to their employees are restricted in their use by the Employee Polygraph Protection Act. Enforcement falls to the DOL (Department of Labor). Generally, the act keeps employers from using polygraph tests for screening (prior to employment) or during employment. There are exceptions. Similar devices to a polygraph are also prohibited by the Act. Things like the deceptograph, psychological stress analyzer, voice stress evaluator, or any mechanical device used to make diagnosis as to the dishonesty or honesty of an employee or potential employee. These lie detectors are electrical or mechanical devices that records various changes in physical changes to make a diagnostic determination about the genuineness of someone. The physical changes can be electrodermal patterns, respiratory, and cardiovascular.

Qualified Examiners

Within 45 days of the discriminatory (alleged) action a federal job applicant or employee must file a complaint of discrimination based on color, race, sex, national origin, age, religion, or mental or physical disability to an EEO counselor with the applicants’ or employees’ agency. The applicant or employee may file a formal complaint within 15 days of getting notice of the right to file a complaint if that complaint cannot be solved informally.

Under 1967’s Age Discrimination in Employment Act, a complaint against federal agencies or departments are required to be filed with the director of equal employment opportunity, head of that agency, head of an EEOC field office, or other official (designated by the agency). This requirement may be skipped by federal employees if they notify the EEOC within 180 days of the discrimination, and then wait 30 days before filing a suit.

Restricted Use of Exemptions

Data on the employment status of members of minority groups and women are published by the EEOC. The EEOC collects information through 6 employment surveys. The surveys cover apprenticeship programs, private employers, state and local governments, labor unions, secondary and elementary schools, and Colleges and Universities. The agency then tabulates data on employees' racial, ethnic, and gender statistics. The product is then distributed to federal agencies who, in turn, make it available to the community.

Rights of Employee or Examinee

Due to the stifling nature of retaliation on employees who may not want to come forward and disclose what they know during investigations if they think it will cost them something, the EEOC has cracked down on this phenomenon. Retaliation can vary from unlawful discharge (for example a Human Resources professional who is performing EEO functions, terminated for it) to assorted other adverse actions. If proven, these charges can result in both compensatory and punitive damages against the employer. Equal Employment Opportunity Commission (EEOC) guidance takes an assertive stance against retaliation, using a broad interpretation of this frequently complained type of discrimination.

Retaliation charges have eclipsed race discrimination since 2009. Now the most common basis for a filing of discrimination charge is retaliation. Nearly 43% of all private-sector complaints filed in 2014 involved retaliation claims. That is two times as many as 1998, which was when the EEOC last issued retaliation guidance.

Authority of Secretary

The Secretary of Labor is must print, and distribute notice of the Act's safeties, to provide rules and regs to protect the conditions of the Act. Every employer shall maintain and post notice in obvious spots on its grounds where notices are usually posted. For more information about the Secretary of Labor go here.

The Secretary shall:

  • issue regulations as necessary or appropriate to enforce this Act;
  • coordinate with local, regional, local, State, and other agencies, furnish specific assistance to private employers, employment agencies, and labor organizations, effectuating the purposes of this Act; and
  • make investigations and inquiries and require the keeping of documentation necessary or appropriate for the administration of this Act.

Civil Penalties

The Equal Employment Opportunity Commission guidance stated that opposition safeguards all employees, including managers and those in Human Resources. Protected opposition examples include complaining about discrimination against others or themselves, counseling an employer on EEO compliance, such as Human Resources reporting violations to leadership, or threatening to complain, reporting evidence in an employer’s internal inquiry of an EEO matter, repelling sexual advances or interceding on behalf of others, declining to comply with an order “reasonably” understood to be discriminatory, passive resistance, for example if a supervisor deciding to not carry out a manager’s direction to put a damper on subordinates filing complaints about discrimination, and asking for reasonable accommodations for religious reasons or a disability . Punishment for discussing pay may i EEO laws and the NLRA (National Labor Relations Act). That issue may not be on employer’s radar. Some of the guidance’s examples of protected opposition reflect newer EEOC positions. For example, if an employee believes she is being hassled by colleagues based on her sexual orientation, and files a complaint with HR or her manager and human resources. Another example, if an employee believes she is being harassed by colleagues based on her gender, and complains to her HR department or her manager and human resources. Protected opposition applies because Title VII [of the Civil Rights Act of 1964, because the EEOC’s stated position and prosecution efforts, individuals may have a reasonable belief that this type of sexual orientation discrimination is illegal as a form of sex discrimination under Title VII. In defending itself from any number of types of retaliation claims, it’s chiefly important for an employer to show consistent enforcement of rules and for any discipline to be well-documented. It’s important that an employer has a handbook that reflects this.

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What Is Colorado Employment Law?

Colorado employment law consists of state and federal rules of employment, and protects employees during recruitment, employment, and after termination.

Pre-Employment Rights

Employers may not consider or mention discriminatory factors such as sex, age or race in job advertisements, interviews or final hiring decisions, during employment, or in reference of the former worker after termination. Organizations are prohibited from illegal interview questions that review topics such as marital status, children, or place of birth.

Colorado Wage Laws

Colorado state wage laws provide better protection for most workers than the Federal Fair Labor Standards Act. Businesses must adhere to state laws covering annual cost-of-living adjustments to the minimum wage and define overtime as working more than 12 hours in one day or 40 hours per week. Colorado’s current minimum wage rate is $9.30.

Safe Work Environment

Federal and state laws require work environments be free from known safety hazards. Whistleblowers are protected under Equal Employment Opportunity Commission (EEOC) Title VII Equal Employment Opportunity (EEO) law. Organizations may not retaliate against whistleblowers, or internal claims of discrimination by firing or demotion.

Workers' Compensation for On-The-Job Injuries

Workers' compensation is a mandatory insurance that all companies with even one employee (with rare exceptions) must have. Workers' compensation pays medical bills and other injury-related expenses, as well as disability, if an employee is hurt at work.

Your Right to Time Off

Employees have the right to time off without jeopardizing their job. This includes Workers’ Compensation cases and Family Leave.

Workplace Harassment

Workers are entitled to be free from unwanted and persistent physical or verbal behavior directed at discriminatory factors (i.e. sex, age or disability). When such behavior creates a hostile work environment, harassment persists.

Leaving Your Job

As an at-will employment law state, workers are entitled to cancel an employment agreement at any time, for any reason, and with full pay and accumulatedtime off or other paid leave.

Post-Employment Benefits

Employees in Colorado are eligible for certain benefits after leaving a job:

  • Unemployment benefits of state mediated cash payments;
  • COBRA continuation of health insurance coverage.

Overtime

State labor laws mandate businesses to pay workers overtime at a rate of 1.5 times their regular rate when they work more than 40 hours in a workweek, more than 12 hours in a workday, or 12 consecutive hours without regard to the workday. The statedemands organizations to pay workers overtime, unless an exemption applies.

Paid vs. Unpaid Breaks

Federal law requires employers to pay for hours worked, including certain time that an employer may designate as “breaks.” Breaks lasting from five to 20 minutes are considered part of the workday, for which workers must be paid. Businesses do not have to pay for bona fide meal breaks.

Meals and Rest Breaks

Colorado is one of the handful of states that instructs organizations to provide and pay for rest breaks. State labor laws compelcompanies doing business in the food and beverage, retail and service, health and medical industries, or commercial support services to provide their workers with a meal period of at least thirty (30) minutes when they work more than five (5) consecutive hours. The worker must be relieved of all duties during the entire thirty-minute meal period. This “duty-free” meal period may be unpaid.

Three New Employment Laws

In 2016, the Colorado General Assembly passed three laws that impact businesses in the state. The laws are Employment Verification, Pregnancy Accommodations, and Personnel-File Inspection.

Colorado Employment-Verification Law Repealed

Colorado State repealed most of its state Employment-Verification Law, effective August 10, 2016. Colorado employers no longer need to complete the Colorado Affirmation Form for new employees. One term that remains of the Employment-Verification Law, is Division of Labor may ask for documentation and audits to confirm a businesses’ compliance with the federal Form I-9 employment-verification requirements. Organizations who participate in E-Verify are required to retain certain documents as outlined in the E-Verify Memorandum of Understanding for Employers.

Pregnancy Accommodations

Amendment to the Colorado Anti-Discrimination Act requires Colorado organizations to provide practical accommodations for workers who can’t perform the crucial functions of their job due to health-related conditions associated with pregnancy or childbirth. The new law prohibits businesses from:

  • taking negative action against workers who request such an accommodation;
  • denying opportunities based on the need to make accommodations;
  • imposing a needless accommodation or one that the worker did not request;
  • or demanding the worker to take leave if another practical accommodation is available.

Employees May Inspect Personnel Files

As of January 2017, Colorado law provides that current and former employees of most private Colorado businesses have limited rights to obtain and inspect a copy of their personnel files. This recent employment law reform does not apply to state employees or financial institutions. Businesses must allow workers to copy and inspect their own personnel files at least once a year. Organizations may require that the inspection of a personnel record take place in the presence of an employer representative, and businesses can require the worker to pay the reasonable costs of copying the file. The act does not create a private right to sue.

What Are My Legal Rights?

Workers who are fired without cause or treated unfairly may have legal rights that are being breached. In Colorado, some of the legal rights of workers are:

  • The entitlementnot to be discriminated against because of age, race, gender, religion, disability, national origin, or pregnancy;
  • The entitlement not to be sexually harassed;
  • The entitlement not to be retaliated against for disagreeing with illegal doings by your organization;
  • The entitlement not to be fired or discriminated against because of taking FMLA leave;
  • The entitlement, unless exempt, to be paid correct overtime.

Age discrimination is covered by a federal statute under the Age Discrimination in Employment Act (ADEA), and by state law. The courts allow for plaintiffs in ADEA cases to sue for compensatory damages valued at double the amount of back pay if the worker can show that an employer’s discrimination was “willful”. Workers can also pursue disability discrimination under the Americans with Disabilities Act (ADA). The ADEA and ADA have similar requirements to EEOC or CCRD interpretation of protections in U.S. employment law.

What About “At-Will” Employment?

Employees of most U.S. companies and organizations are employed at-will. The employer and the employee are free to cancel employment agreement without cause, at any time. There are exceptions to at-will employment, giving workers significant rights. Exceptions include:

  • Workers who are discriminated against because of age, race, gender, disability, pregnancy, religion, or national origin;
  • Workers who are sexually harassed;
  • Workers who are retaliated against for opposing illegal doings of their organization;
  • Workers who are fired or discriminated against because they take FMLA leave;
  • Workers who are not being paid correct wages and overtime.

What Makes a Good Case?

Employees with a “good” case for settlement, may also be a “good” case for litigation. When an employer is interested insettling, it is usually a signal that they acknowledge that it will be affirmed in an employee’s favor. The reasons that a business may settle an employee grievance with upfront compensation:

  • The organization’s aversion for conflict or litigation;
  • The organization’s need to sustain a positive relationship;
  • The organization’s need to hide something;
  • The organization’s need to amiablyremove you as a worker;
  • The organization’s sense of obligation to you.

Factors creating the conditions for a “good” case:

  • “Smoking guns” – witnessed or documented discriminatory action;
  • Nonsensical termination where a worker has outstanding performance evaluations over a long period, and is fired without justification;
  • A large successful company;
  • Cases involving multiple workers who have received the same illegal treatment by the organization and who wish to pursue their case together;
  • Discrimination cases where there are statistics or statements illustrating unfair treatment of minorities;
  • Cases where workers have witnesses of illegal treatment by an organization;
  • Cases where Title VIII protected classes of workers will permit substantial recovery in court.

Can I Settle My Claim?

Workers interested in settling legal claims with an employer to avoid filing a lawsuit, must exhibit they have legal claim and sensible severance expectations. Employers are motivated to settle as well. Title VII rules applying to all employers of organizations with 15 or more employees, provides for the recovery of unlimited economic damages of up to $300,000 for intentional infliction of emotional distress (IIED) or punitive damages and the offset of attorneys’ fees. Workers pursuant of a lawsuit against an employer in Colorado must first file a charge of discrimination with the EEOC or CCRD within 300 days from the date of their discrimination.

Do I Have a Claim for Wrongful Termination?

Employees who have been “wrongfully discharged” or “wrongfully terminated” can file a legal claim for unjust termination. Colorado courts consider wrongful termination lawsuits, where a worker is fired for oppositional conduct that is illegal or against public policy. Colorado recognizes Title VII protected opponents as part of EEO law.

What Can I Do If I Am Harassed at Work?

Sexual harassment and race harassment are both forbidden under EEOC rules in Title VII. Employees wishing to pursue Title VII sex and/or race harassment claims are required to file a charge of discrimination with the EEOC or CCRD within 300 days.

What Are My Family and Medical Leave Act Rights?

Under the Family and Medical Leave Act (FMLA), employees who have been employed for more than one year by employers with at least 50 employees, may have the entitlement to take up to 90 days unpaid leave to help take care of a child, parent or spouse with a chronic or serious medical condition, fora chronic or serious medical condition, or for the birth of a child. Workers who take FMLA leave have the right to return to their former position and may not be discriminated against by the organization.

Can I Enforce a Verbal Promise?

Workers typically think they do not have the right to legally enforce a verbal promise. In Colorado, explicit promises by employers that are depend on by workers may be legally enforceable if there is no disclaimer by the organization.

Do’s for Termination

  • Request reference letters from your managers.
  • Ask your companyfor a written explanation for your termination.
  • Seek assistance from an employment lawyer if your termination gives rise to a legal claim.
  • Return all company property including all company documents.
  • Review your non-compete agreement, if any, and check with an employment attorney about its enforceability.
  • If you have not received all the back wages and commissions due you, make a formal written demand to the company, with address where wages and commission may be forwarded.
  • If fired through no fault of your own, or left because of a significant change in working conditions on the job, find out about unemployment compensation eligibility.
  • If discriminated against on basis of age, sex, religion, race, national origin or disability, file a charge of discrimination with the EEOC or the CCRD within 300 days of your first notice of termination.
  • Obtain the names and contact information of other company employees if considering legal action. Workers may be witnesses to discrimination or have similar legal claims.
  • Be careful with respect to any verbal or written statements about company employees, as those statements can serve as evidence later.

Don'ts for Termination

  • Make threats or express your frustration.
  • Sign a release of claims unless you are sure that you don’t want to pursue legal action.
  • Assume that you won’t be able to negotiate better terms for your severance arrangement.
  • Say or do anything that provides your organization with “cause” for your termination. Even though you may have already been given notice of your termination, continue to abide by all company rules.
  • Take company documents.
  • Send written complaint or grievance letters to company officers, human resources or managers without first consulting an employment lawyer for advice.
  • Write complimentary letters to your boss or to the company if you are thinking about taking legal action.

If you have questions about Colorado Employment Law, you can post your legal need on UpCounsel’s marketplace. Lawyers on UpCounsel come from law schools such as Harvard Law and Yale Law and average 14 years of legal experience, including work with or on behalf of companies like Twilio and Google.