Houston Business Litigation and Employment Law attorney Lee Solomon offers comprehensive business planning, employment law, business law and litigation and immigration services to corporate clients Throughout Texas and across the United States at www.thesolomonlawfirm.com. Employers and Employees should know their respective rights and obligations before the polygraph machine is ever turned on. The Solomon Law Firm, P.C., a Houston employment law firm, represents both defendants and plaintiffs who require an experienced Texas labor & employment lawyer.

1. Employee Polygraph Protection Act Of
1998 - Houston, Texas
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2. Employee Polygraph Protection Act of 1998
» You have been busted! The machine doesn't lie. It is a lie detector and
you just failed the test. You are fired! Is this a familiar story to you?
» Whoa. Not so fast there Employer. You just might be the one who gets
busted. Employers and Employees (as well as prospective employees)
should know their respective rights and obligations before the polygraph
machine is ever turned on. That means they need to know about a little
known statute that has been on the books for about twenty years.
» An employer who violates this statute is looking at a civil penalty of up to
$10,000, plus the prospect of a civil lawsuit by the employee or
prospective employee to recover damages plus attorney’s fees and court
costs.
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3. » The statute broadly applies to the use of any electrical or mechanical
device for the purpose of obtaining a diagnostic opinion about the
honesty or dishonesty of a person.
» It applies broadly to any employer who is engaged in or affecting
commerce or in the production of goods for commerce. It applies
whether or not the employee or prospective employee took the test.
Please click here to read the Employee Polygraph Protection Act of 1998 (in PDF format)
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4. » And by the way, if you are an employer, do you have the required
notice about this statute posted conspicuously at your place of
business?
» If you are an employee, you may be entitled to equitable relief in addition
to damages, which could include such things as reinstatement,
employment (if you were unlawfully denied a job because of a violation of
the statute), and promotion. Damages can include payment of lost wages
and benefits.
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5. » There are exemptions under the statute for governmental employers,
and when the testing is used by the federal government for national
defense or national security purposes, and for FBI contractors.
» There are also exemptions for certain security services, and for certain
drug security, drug theft, or drug diversion investigations.
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6. » But there is another exemption that can come into play in the private
sector. This is a limited exemption for ongoing investigations where
the requirements of the statute are satisfied.
» These requirements include that the investigation must involve economic
loss or injury to the Employer such as theft, embezzlement,
misappropriation, or an act of industrial espionage or sabotage, where
the employee had access to the property in question, and the employer
has a reasonable suspicion that the employee was involved in the incident
or activity being investigated.
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7. » Under this latter exemption, however, the Employer must execute a
statement and provide it to the person to be examined prior to the
test.
» This statement must set forth with particularity the specific incident or
activity that is being investigated and the basis for testing particular
employees. It must be signed by a person other than the polygraph
examiner who is legally authorized to bind the Employer. It must be
retained by the Employer for at least three years.
Polygraph Examiner
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8. » At a minimum the required statement must identify the specific
economic loss or injury to the business, must indicate that the
Employee had access to the property that is the subject of the
investigation, and must describe the basis of the employer’s
reasonable suspicion that the Employee was involved in the incident or
activity that is under investigation.
» But even then, the latter exemption does not apply where an adverse
employment action is taken based on the test results unless there is
additional supporting evidence.
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9. » There is also an additional requirement that must be satisfied if an
Employer is relying on the exemption for certain security services and
the drug related exemption.
» The additional requirement is that the Employer cannot rely solely on the
results of the polygraph test in making an adverse employment decision.
» Do you have it now? Read on, because there is more. This is a very
technical statute which is easy to violate.
» The testing process is broken into four phases, and there are
requirements for each phase. This part of the statute applies to three of
the exemptions that are discussed above. Specifically, it applies to the
limited exemption for ongoing investigations, and it applies to the
security services and drug related exemptions.
These four phases are discussed below.
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10. 1 • First, for all phases of the test, the person being examined (the
1
“Examinee”) must be allowed to terminate the test at any time.
The Examinee must not be asked questions in a way that is
designed to degrade or needlessly intrude on the Examinee.
• The Examinee cannot be asked questions about religious beliefs or
affiliations, beliefs or opinions about racial matters, political beliefs
or affiliations, any matter relating to sexual behavior, or beliefs,
affiliations, opinions, or lawful activities regarding unions or labor
organizations.
• In addition, the test cannot be given if there is sufficient written
evidence by a physician that the Examinee is suffering from a
medical
or psychological condition or is undergoing treatment that might
cause abnormal response during the actual testing phase.
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11. 2 • Second, during the pretest phase, the prospective Examinee must
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be provided reasonable written notice of the date, time, and
location of the test.
• The Examinee must be given written notice of his or her right to
obtain and consult with legal counsel or an Employee representative
before each phase of the test. The Examinee must be given written
notice of the nature and characteristics of the tests and of the
instruments involved.
• The Examinee must be informed in writing whether the testing area
contains a two-way mirror, a camera, or any other device through
which the test can be observed, as well as whether any other device
(including any device for recording or monitoring the test) will be
used, or that the Employer or the Examinee may (with mutual
knowledge) make a recording of the test.
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12. Still as part of the pretest phase, the Examinee must be read and must
sign a written notice informing him or her of certain things which
includes:
• That the Examinee cannot be required to take the test as a condition of
employment;
• That any statement made during the test may constitute additional
supporting evidence for the purposes of an adverse employment action;
• What the limitations are that are imposed by the statute;
• What the legal rights and remedies are that are available to the Examinee
if the polygraph test is not conducted in accordance with the statute; and
• What the legal rights and remedies of the Employer are under the
statute.
• And finally, still as part of the pretest phase, the Examinee must be given
an opportunity to review all questions to be asked during the test and be
informed of the right to terminate the test at any time.
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13. 3 Third, during the actual testing phase, the examiner cannot ask the
3
Examinee any relevant question during the test that was not
presented in writing for test review by the Examinee before the
test.
4 Fourth, during the post-test phase, the employer cannot take any
4
adverse employment action without first interviewing the
Examinee further on the basis of the results of the test, and provide
the Examinee with a written copy of any opinion or conclusion that
is based on the results of the test along with a copy of the questions
that were asked during the test.
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14. » There are other provisions in the statute that limit how and to who
results of the test can be given. There is also a maximum and minimum
duration for the tests.
» Under this latter provision, no more than five polygraph tests can be
given by an examiner on a single calendar day, and each test must last for
at least ninety minutes.
Click here to read the full text of the Employee Polygraph Protection Act of 1998 (in PDF format).
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15. CONTACT THE SOLOMON LAW FIRM, P.C.
Main Office
510 Bering Drive, Suite 300
Houston, Texas 77057
Toll Free 888.777.6391
Fax to 713.358.5513
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