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Author
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Topic: EPPA Question
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Ted Todd
Member
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posted 11-22-2007 11:02 AM
 
I have been asked by a City Manager to do a Pre-employment exam on an applicant for Fire Chief. The city does not currently require polygraph exams for fire positions. The applicant is from out of state and the City Manager felt the polygraph exam would help streamline the background process( A novel idea !). The applicant has taken several polygraphs in the past for fire positions in another state and is quite willing to take the exam. Does anyone see any potential EPPA problems here? ( TV-you out there?)
THXTed
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Barry C
Member
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posted 11-22-2007 08:56 PM
EPPA doesn't apply to the government at any level (federal. state, county or local), so there's no problem.IP: Logged |
Barry C
Member
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posted 11-22-2007 09:04 PM
Here's a link to the Act:
http://www.dol.gov/esa/regs/statutes/whd/poly01.pdf See section 7(a). IP: Logged |
Ted Todd
Member
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posted 11-22-2007 10:08 PM
Thanks Barry !Ted IP: Logged |
Taylor
Member
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posted 12-31-2007 07:12 PM
Another EPPA issue and I apologize if this one is long. I was contacted by a man that works for a large company. Apparently his immediate boss was advised, by him, of several situations that the boss is now denying and if found out by certain individuals it could result in criminal action. He would like a polygraph to show that he did inform his boss of this information. There are several so it would probably be a written statement verification polygraph. He wants the polygraph for possible future problems that could arise….if the boss filets him to escape culpability. Initially, I told him this is an EPPA issue and if a polygraph was administered his employment couldn’t use the results or they would face a $10,000 fine. He laughed and stated that is nothing to his company. Of course, it didn’t persuade me to conduct the examination. I informed him if there is a possibility of criminal action to consult with an attorney and then I could conduct an attorney/client privilege examination and the attorney could keep the results if an investigation is started. Today, I received an email from this man and have pasted it below. Can any of you advise on which route to take with this individual? I’ve taken a few minutes to review the EPPA. I see where there are some issues. However, I don’t see where the Act prevents doing what I’d like to do.
• The act prevents the employer from requiring, asking, suggesting, etc. that I should take the polygraph test. My employer hasn’t done any of these things. It is my idea.
• The intent of the Act is to prevent employers from causing any damage to an employee or potential employee (termination, denying promotion, not hiring, etc.) by the considering results of a polygraph test. In this case, the results of a polygraph would not cause damage to an employee (me) by an employer….. Specifically, it would document that I acted appropriately. However, I recognize this is a slant for attorneys to wrestle with. It is not needed now.
• I see the line in the Act that says it is a violation for an employer to accept results of a polygraph. I don’t intend to ask my employer to accept the results. If the case arises where my job would become in jeopardy because inappropriate actions were believed to be my decisions, I would consider mentioning that I had a polygraph completed, that the results indicate I was truthful, but that there are issues with them receiving the results because of the EPPA. They would either take my word for it, or get an attorney involved. Again, I work for a great, moral, company whose senior management has great integrity. My problems are only with one individual who happens to be my immediate boss. In a nutshell, the issues I’m worried about are ones that wouldn’t exist if under senior manager’s direction. The question would be who was responsible. I have a weaker position being lower in ranking.
• I see the results of a polygraph useful in defending myself against a regulatory agency action. It is a real danger. I don’t see where the act prevents a government agency from being provided or accepting the results for whatever value it would be to them. This is one of my prime motives.
I do understand that there are issues. I don’t see where the Act prevents me from taking a test on my own….it’s just what I would do with it. Can you simply include a warning on your report that advises of the EPPA and that an employer may be violating the Act by accepting the report? Maybe on each page if there is more than one page? IP: Logged |
Ted Todd
Member
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posted 12-31-2007 07:29 PM
Donna,EPPA only applies to a polygraph requested by or initiated by an employer. I think you would be OK to do it since it is the employee who is requesting and paying for it. If in doubt.....refer to the man....T.V.! Ted IP: Logged |
Barry C
Member
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posted 12-31-2007 10:49 PM
The "problem" is that if he passes and tells the company, what would they do with it? If his "pass" leads to them suspecting somebody else and taking adverse action (and "suspicion they wouldn't otherwise have might be all one needs to get the ball rolling - I don't know), then they "used" his polygraph even though the client initiated it. You are probably safe, but the company still could get in trouble.The AAPP attorney has said whether criminal or otherwise, the employer should never get into a position where they learn (or could learn) of a polygraph result - pass or fail. (A pass just means an error or it's time to start looking at somebody else - somebody who wouldn't likely have been looked at otherwise.) EPPA is a killer - and it was designed to be by our friend Ted Kennedy. I think you have an obligation to tell the client that he could get his "moral" company in a lot of trouble "accidentally." Again, I think you might be okay, but that doesn't mean you won't get named in something down the road - if only temporarily. IP: Logged |
Buster
Member
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posted 01-01-2008 08:03 AM
Yeah Barry, when I was in the academy the instructor said the company can never be involved "Even if the employee offers." I think thats was we have here--the company isn't requesting, but the employee is offering...either way there is still a work-relationship. I know it's a bit of a reach.IP: Logged |
Taylor
Member
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posted 01-01-2008 11:24 AM
That is why I told him I couldn't test him -I believe it is an EPPA issue regardless of who asks for the exam. I guess where I was questioning it more was if I did it under the attorney/client privilege. Then again, even if he mentions to anyone at the company - everyone is in a jam.
When it has the 'ick' factor I shouldn't even question myself. Apparently I answered my own question. Thanks guys for your input. Taylor
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ebvan
Member
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posted 01-01-2008 12:43 PM
Based on the language of the act I think the examinee may offer the results of the examination to whomever he pleases even though the employer would violate the act if he accepts the results:
SEC. 9. DISCLOSURE OF INFORMATION.
(a) IN GENERAL.—A person, other than the examinee, may not disclose information obtained during a polygraph test, except as
provided in this section.I don't think that an examiner can violate the disclosure prohibitions in the act absent an established relationship or direct communication with the employer. The examinee CANNOT violate the act. If the examine can't violate the act, I think the examiner can legally run a test for the examinee and provide him with the results of the exam without violating EPPA.
Even in a criminal investigation, If a detective violates the law and gives the results of the examination to an employer that does not make the examiner culpable for the violation.
Just to be safe, the following words appear in bold type at the bottom of every polygraph report I have ever written
"Warning
The disclosure of any information contained in this report is prohibited, except as provided by law" ------------------
Ex scientia veritas IP: Logged |
Barry C
Member
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posted 01-01-2008 01:20 PM
I think the issue is one of a potential tort (negligence) not the Act itself. You may well win but would you want to be named even for a short time?The employee can't violate the Act, but what benefit is the test if his employer can't know if it? Who's going to do the investigation so you get the questions right? Do you take the suspect's (employee) word for it? It's an odd place to be. Can you do the test legally under EPPA? I think you can. Can you get more than you bargained for down the road? I suspect that given the right circumstances, you could "win that prize" too. How do you know the employer hasn't wrongly mentioned a polygraph already? Again, you must believe the suspect / client. If you were to do it, I'd suggest a waiver that discloses everything - even how his mention of it to the employer could get him into trouble if they used the passing results to become suspicious of somebody else - which is where the problem lies. IP: Logged |
ebvan
Member
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posted 01-01-2008 02:34 PM
Barry's waiver idea is a good one and I don't think anyone's responses here should be taken as a "Blanket Response" This deals with a borderline area of EPPA and even a minor change or a more thorough examination of the circumstances might alter every opinion given so far. As to what the employee might get from the polygraph, It might be very important to him as a matter honor or personal comfort that someone besides himself knows he is telling the truth. ------------------
Ex scientia veritas IP: Logged |
rcgilford
Member
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posted 01-01-2008 02:59 PM
I believe that EPPA can present a potential problem even when the test is being administered for criminal investigation purposes that involves a business loss. I exercise caution with our detectives whenever they are investigating a reported theft from an employer. First of all, I tell them that indiscriminant testing of all employees is out of the question. If the request for the test of an employee originated from the employer, that is an EPPA violation, or potential violation, and I advise the detective not to pursue polygraph testing during the investigation (unless they have an extra $10,000 they can live without). Assuming the employer has not suggested the polygraph test, I instruct the detectives to do a number of things:1. Do not discuss the polygraph with the employer!
2. If the employer suggests the polygraph test, advise them that they (the employer) must comply with the provisions of EPPA. I then give the detective a copy of EPPA and have them give it to the employer.
3. Do not disclose test results to the employer! Again….DO NOT DISCLOSE TEST RESULTS TO THE EMPLOYER!
4. Explain to the employer that if we (law enforcement) provide them with test results, they may end up paying a hugh civil penalty! And many times, the civil penalty will be more than the amount of loss. On all of my reports of this nature, I include the following statement: "Under the provisions of the Employee Polygraph Protection Act (EPPA) of 1988, the receipient of this report is advised that disclosure of the test results to the employer of the person who was tested may be a violation of that law. Each violation of the EPPA could subject the violator to a substantial civil penalty." The “receipent” is the detective who requested the test. Granted, the disclosure is not a violation, but if it is disclosed, the employer will undoubtedly use the results to make a decision, so by following this procedure, we (law enforcement) are protecting the employer. And, I don’t relish the thought of being named in some civil suit! Any thoughts or comments?? IP: Logged |
Barry C
Member
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posted 01-01-2008 05:18 PM
I agree. In a criminal situation, we. the police, must dictate when polygraph is used. Once we do the test, the employer shouldn't even want to know the results, let alone have them provided. It's crazy, but the law was written to hurt polygraph, and it has done that well - even in situations where it could really help.IP: Logged |
stat
Member
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posted 01-01-2008 05:56 PM
Allow the resident liberal to disagree. EPPA was not meant to hurt polygraph, it was meant to help the American worker. There is a difference. The American workforce was hurt by polygraph for generations. Who here hasn't met a man who wasn't asked on a polygraph for say, Radio Shack---whether or not he were gay or bisexual? The amount of "borderline" Civil Rights violations were positively sickening. To this day it suprises me that more examiners weren't killed in their homes (thank God).
10-20 exams per day???!!! Questions about sex???!!!! CIA-type scope exams for positions like bowling alley cashier????!!!
We are lucky that Kennedy didn't outlaw civilian polygraph altogether. If Polygraph Examiners were actually "punished" as you suggest, they would have been incarcerated for sexual assault and practicing psychology without a license. I am reminded of the "psychologist" from the movie "Miracle on 34th Street" that was a staff member at Macy's who was neither a psychologist nor even remotely intelligent. In my mind, saying we were punished is like saying we are being punished with seat belt laws because we kept dying. Regulation CAN be a great thing. It keeps me from buying a top fuel dragster for trips to the grocery store. Then again, that would be fun were it not for the glass-shattering engine cam rummble and the alcohol fumes.I say thank God for EPPA (actually thank that little fatso Kennedy) as had things continued, civilian polygraph would be either made illegal, or relegated to the scrapheap that includes electroshock, the lobodomy, and 8-track tapes. Without EPPA, there would have been no PCSOT---a (mostly)politically and ethically sound civilian use for polygraph. 2 cents plus a nickel's worth. ------------------
"There is a time for laughing and a time for not laughing. This is not one of them." ---- Inspector Clouseau / Peter Sellers
[This message has been edited by stat (edited 01-01-2008).] IP: Logged |
Barry C
Member
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posted 01-01-2008 06:59 PM
You're forgetting that EPPA as we know it was a settlement. Law enforcement was carved out in order to get "it" through. Moreover, the business community accepted EPPA (the "it") without seeing the law in writing - with the promise that they'd still be able to do the tests such as these (in other words, they took Kennedy's word for it). When it went into law and everybody saw it, they had no energy left to fight to regain the lost ground. What we have today isn't what was bargained for. It was drafted and pushed through by an antipolygraph crowd, and it wasn't the solution to the problem. That problem just helped facilitate the process of killing polygraph in certain situations.There's quite a story behind how it came into being. Yes, many examiners asked for it, but what we got was intended to incrementally outlaw polygraph one step at a time. There is a belief that Kennedy will be back to finish the job. IP: Logged |
stat
Member
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posted 01-01-2008 07:27 PM
Yes, it is an interesting story. However, I woundn't go so far as to believe that EPPA could be an incremental step like say, the ban on partial birth abortion. Both pieces of law have been accused of such side -stepping of a looming prohibition. I have my doubts. I do know that one shouldn't screw with the American worker if one wants to recieve votes in an election. Having completed my bachelor's major in Business Human Resources in '05, I see EPPA and civilian workforce polygraph exams through the eyes of the employee/employer and the business ethics of hiring practices----rather than as polygraph examiner.
Aside from a law enforcement agency or a federal intel body, anyone that asks me to take a polygraph test can go play with an electric outlet. As TV'O suggested, EPPA is a complicated and oft misunderstood law----but then again, ALL business laws are quite complicated and difficult to know the exact parameters. As EPPA unfolds, we have merely been raised to the level as other forms of employment activities and the consequential regulations----so in effect, before EPPA, we were untasked, and now, we are apart of the rest of testing and evaluation of employees present or to-be hired. EPPA only welcomed us into the light of legality, not some form of banishment per se. ------------------
"There is a time for laughing and a time for not laughing. This is not one of them." ---- Inspector Clouseau/ Peter Sellers [This message has been edited by stat (edited 01-01-2008).] IP: Logged |
Buster
Member
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posted 01-01-2008 07:36 PM
Imagine Kennedy's test if he ever took one.Sorry, Donna --I see where you had a fighting chance, now. It's pretty close to illegal in New Jersey. There is (0) pre-employment testing, even for cops--its illegal. Not counting the SP and Prosecutors Office, I am the only police employed examiner(that I know of) in all of South Jersey. Some of my friends I went to the academy with are VSA operators. They claim to have success with it? IP: Logged |
stat
Member
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posted 01-01-2008 08:08 PM
Buster
ahhh Jersey----I happen to love Ocean City, NJ---and I prefer it to OC Maryland. Rent a bicycle, ride around the boardwalk----and be lazy. Most hoosiers like our vacations laid back. Here is a nice pic of OC Jersey; http://www.blackdog.net/downloads/wallpaper/ocnj/lg/ocnj03-lg.jpg [This message has been edited by stat (edited 01-01-2008).] IP: Logged |
Buster
Member
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posted 01-02-2008 03:48 PM
Yeah Stat I grew up on that beach and started my career in Sea Isle.My buddy played for the Colts for a few years, but I never made it out to see him --then they cut him. So, Hoosierland is just a place on the map to me. IP: Logged | |
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