EPPA Exemptions for Employers

ELECTRONIC CODE OF FEDERAL REGULATIONS

 

Title 29: Labor 

PART 801—APPLICATION OF THE EMPLOYEE POLYGRAPH PROTECTION ACT OF 1988
Subpart B—Exemptions


§801.12   Exemption for employers conducting investigations of economic loss or injury.

(a) Section 7(d) of the Act provides a limited exemption from the general prohibition on lie detector use in private employment settings for employers conducting ongoing investigations of economic loss or injury to the employer’s business. An employer may request an employee, subject to the conditions set forth in sections 8 and 10 of the Act and §§801.20, 801.22, 801.23, 801.24, 801.25, 801.26, and 801.35 of this part, to submit to a polygraph test, but no other type of lie detector test, only if—

(1) The test is administered in connection with an ongoing investigation involving economic loss or injury to the employer’s business, such as theft, embezzlement, misappropriation or an act of unlawful industrial espionage or sabotage;

(2) The employee had access to the property that is the subject of the investigation;

(3) The employer has a reasonable suspicion that the employee was involved in the incident or activity under investigation;

(4) The employer provides the examinee with a statement, in a language understood by the examinee, prior to the test which fully explains with particularity the specific incident or activity being investigated and the basis for testing particular employees and which contains, at a minimum:

(i) An identification with particularity of the specific economic loss or injury to the business of the employer;

(ii) A description of the employee’s access to the property that is the subject of the investigation;

(iii) A description in detail of the basis of the employer’s reasonable suspicion that the employee was involved in the incident or activity under investigation; and

(iv) Signature of a person (other than a polygraph examiner) authorized to legally bind the employer; and

(5) The employer retains a copy of the statement and proof of service described in paragraph (a)(4) of this section for at least 3 years and makes it available for inspection by the Wage and Hour Division on request. (See §801.30(a).)

(Approved by the Office of Management and Budget under control number 1225-0170)

(b) For the exemption to apply, the condition of an “ongoing investigation” must be met. As used in section 7(d) of the Act, the ongoing investigation must be of a specific incident or activity. Thus, for example, an employer may not request that an employee or employees submit to a polygraph test in an effort to determine whether or not any thefts have occurred. Such random testing by an employer is precluded by the Act. Further, because the exemption is limited to a specific incident or activity, an employer is precluded from using the exemption in situations where the so-called “ongoing investigation” is continuous. For example, the fact that items in inventory are frequently missing from a warehouse would not be a sufficient basis, standing alone, for administering a polygraph test. Even if the employer can establish that unusually high amounts of inventory are missing from the warehouse in a given month, this, in and of itself, would not be a sufficient basis to meet the specific incident requirement. On the other hand, polygraph testing in response to inventory shortages would be permitted where additional evidence is obtained through subsequent investigation of specific items missing through intentional wrongdoing, and a reasonable suspicion that the employee to be polygraphed was involved in the incident under investigation. Administering a polygraph test in circumstances where the missing inventory is merely unspecified, statistical shortages, without identification of a specific incident or activity that produced the inventory shortages and a “reasonable suspicion that the employee was involved,” would amount to little more than a fishing expedition and is prohibited by the Act.

(c)(1)(i) The terms economic loss or injury to the employer’s business include both direct and indirect economic loss or injury.

(ii) Direct loss or injury includes losses or injuries resulting from theft, embezzlement, misappropriation, industrial espionage or sabotage. These examples, cited in the Act, are intended to be illustrative and not exhaustive. Another specific incident which would constitute direct economic loss or injury is the misappropriation of confidential or trade secret information.

(iii) Indirect loss or injury includes the use of an employer’s business to commit a crime, such as check-kiting or money laundering. In such cases, the ongoing investigation must be limited to criminal activity that has already occurred, and to use of the employer’s business operations (and not simply the use of the premises) for such activity. For example, the use of an employer’s vehicles, warehouses, computers or equipment to smuggle or facilitate the importing of illegal substances constitutes an indirect loss or injury to the employer’s business operations. Conversely, the mere fact that an illegal act occurs on the employer’s premises (such as a drug transaction that takes place in the employer’s parking lot or rest room) does not constitute an indirect economic loss or injury to the employer.

(iv) Indirect loss or injury also includes theft or injury to property of another for which the employer exercises fiduciary, managerial or security responsibility, or where the firm has custody of the property (but not property of other firms to which the employees have access by virtue of the business relationship). For example, if a maintenance employee of the manager of an apartment building steals jewelry from a tenant’s apartment, the theft results in an indirect economic loss or injury to the employer because of the manager’s management responsibility with respect to the tenant’s apartment. A messenger on a delivery of confidential business reports for a client firm who steals the reports causes an indirect economic loss or injury to the messenger service because the messenger service is custodian of the client firm’s reports, and therefore is responsible for their security. Similarly, the theft of property protected by a security service employer is considered an economic loss or injury to that employer.

(v) A theft or injury to a client firm does not constitute an indirect loss or injury to an employer unless that employer has custody of, or management, or security responsibility for, the property of the client that was lost or stolen or injured. For example, a cleaning contractor has no responsibility for the money at a client bank. If money is stolen from the bank by one of the cleaning contractor’s employees, the cleaning contractor does not suffer an indirect loss or injury.

(vi) Indirect loss or injury does not include loss or injury which is merely threatened or potential, e.g., a threatened or potential loss of an advantageous business relationship.

(2) Economic losses or injuries which are the result of unintentional or lawful conduct would not serve as a basis for the administration of a polygraph test. Thus, apparently unintentional losses or injuries stemming from truck, car, workplace, or other similar type accidents or routine inventory or cash register shortages would not meet the economic loss or injury requirement. Any economic loss incident to lawful union or employee activity also would not satisfy this requirement. It makes no difference that an employer may be obligated to directly or indirectly incur the cost of the incident, as through payment of a “deductible” portion under an insurance policy or higher insurance premiums.

(3) It is the business of the employer which must suffer the economic loss or injury. Thus, a theft committed by one employee against another employee of the same employer would not satisfy the requirement.

(d) While nothing in the Act prohibits the use of medical tests to determine the presence of controlled substances or alcohol in bodily fluids, the section 7(d) exemption does not permit the use of a polygraph test to learn whether an employee has used drugs or alcohol, even where such possible use may have contributed to an economic loss to the employer (e.g., an accident involving a company vehicle).

(e) Section 7(d)(2) provides that, as a condition for the use of the exemption, the employee must have had access to the property that is the subject of the investigation.

(1) The word access, as used in section 7(d)(2), refers to the opportunity which an employee had to cause, or to aid or abet in causing, the specific economic loss or injury under investigation. The term “access”, thus, includes more than direct or physical contact during the course of employment. For example, as a general matter, all employees working in or with authority to enter a warehouse storage area have “access” to unsecured property in the warehouse. All employees with the combination to a safe have “access” to the property in a locked safe. Employees also have “access” who have the ability to divert possession or otherwise affect the disposition of the property that is the subject of investigation. For example, a bookkeeper in a jewelry store with access to inventory records may aid or abet a clerk who steals an expensive watch by removing the watch from the employer’s inventory records. In such a situation, it is clear that the bookkeeper effectively has “access” to the property that is the subject of the investigation.

(2) As used in section 7(d)(2), property refers to specifically identifiable property, but also includes such things of value as security codes and computer data, and proprietary, financial or technical information, such as trade secrets, which by its availability to competitors or others would cause economic harm to the employer.

(f)(1) As used in section 7(d)(3), the term reasonable suspicion refers to an observable, articulable basis in fact which indicates that a particular employee was involved in, or responsible for, an economic loss. Access in the sense of possible or potential opportunity, standing alone, does not constitute a basis for “reasonable suspicion”. Information from a co-worker, or an employee’s behavior, demeanor, or conduct may be factors in the basis for reasonable suspicion. Likewise, inconsistencies between facts, claims, or statements that surface during an investigation can serve as a sufficient basis for reasonable suspicion. While access or opportunity, standing alone, does not constitute a basis for reasonable suspicion, the totality of circumstances surrounding the access or opportunity (such as its unauthorized or unusual nature or the fact that access was limited to a single individual) may constitute a factor in determining whether there is a reasonable suspicion.

(2) For example, in an investigation of a theft of an expensive piece of jewelry, an employee authorized to open the establishment’s safe no earlier than 9 a.m., in order to place the jewelry in a window display case, is observed opening the safe at 7:30 a.m. In such a situation, the opening of the safe by the employee one and one-half hours prior to the specified time may serve as the basis for reasonable suspicion. On the other hand, in the example given, if the employer asked the employee to bring the piece of jewelry to his or her office at 7:30 a.m., and the employee then opened the safe and reported the jewelry missing, such access, standing alone, would not constitute a basis for reasonable suspicion that the employee was involved in the incident unless access to the safe was limited solely to the employee. If no one other than the employee possessed the combination to the safe, and all other possible explanations for the loss are ruled out, such as a break-in, the employer may formulate a basis for reasonable suspicion based on sole access by one employee.

(3) The employer has the burden of establishing that the specific individual or individuals to be tested are “reasonably suspected” of involvement in the specific economic loss or injury for the requirement in section 7(d)(3) to be met.

(g)(1) As discussed in paragraph (a)(4) of this section, section 7(d)(4) of the Act sets forth what information, at a minimum, must be provided to an employee if the employer wishes to claim the exemption.

(2) The statement required under paragraph (a)(4) of this section must be received by the employee at least 48 hours, excluding weekend days and holidays, prior to the time of the examination. The statement must set forth the time and date of receipt by the employee and be verified by the employee’s signature. This will provide the employee with adequate pre-test notice of the specific incident or activity being investigated and afford the employee sufficient time prior to the test to obtain and consult with legal counsel or an employee representative.

(3) The statement to be provided to the employee must set forth with particularity the specific incident or activity being investigated and the basis for testing particular employees. Section 7(d)(4)(A) requires specificity beyond the mere assertion of general statements regarding economic loss, employee access, and reasonable suspicion. For example, an employer’s assertion that an expensive watch was stolen, and that the employee had access to the watch and is therefore a suspect, would not meet the “with particularity” criterion. If the basis for an employer’s requesting an employee (or employees) to take a polygraph test is not articulated with particularity, and reduced to writing, then the standard is not met. The identity of a co-worker or other individual providing information used to establish reasonable suspicion need not be revealed in the statement.

(4) It is further required that the statement provided to the examinee be signed by the employer, or an employee or other representative of the employer with authority to legally bind the employer. The person signing the statement must not be a polygraph examiner unless the examiner is acting solely in the capacity of an employer with respect to his or her own employees and does not conduct the examination. The standard would not be met, and the exemption would not apply if the person signing the statement is not authorized to legally bind the employer.

(h) Polygraph tests administered pursuant to this exemption are subject to the limitations set forth in sections 8 and 10 of the Act, as discussed in §§801.20, 801.22, 801.23, 801.24, 801.25, 801.26, and 801.35 of this part. As provided in these sections, the exemption will apply only if certain requirements are met. Failure to satisfy any of the specified requirements nullifies the statutory authority for polygraph test administration and may subject the employer to the assessment of civil money penalties and other remedial actions, as provided for in section 6 of the Act (see subpart E, §801.42 of this part). The administration of such tests is also subject to State or local laws, or collective bargaining agreements, which may either prohibit lie detector tests, or contain more restrictive provisions with respect to polygraph testing.


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Does Polygraph Really Work?

Polygraph for the most part does work reliably. There are many good scientific studies that indicate that polygraph testing is much higher than the probability of chance. These studies indicate that polygraph is somewhere between 85 to 95% reliable. I have been doing polygraph tests for over 32 years and can only think of a handful of times that I was doubtful or concerned about my opinion. This post is about a fairly recent case that I had concerns about. The posted article is based on a real polygraph test but the identities and some information has been changed to protect the identity of the examinee. No inferences in this article should be construed to point to any individual. The information is offered to enlighten peoples knowledge about the limits of polygraph testing.

This case starts with a call from a husband that is sure his wife had cheated on him. He said that he already knew that his wife has cheated but she was in denial and would not admit the truth. I told him that I would keep an open mind and I would appreciate if he would consider doing the same until I completed her polygraph examination. I explained the statistical reliability of polygraph and told him that he should not make any major decisions based exclusively on polygraph testing.

Part of my protocol for testing fidelity issues is the following:

  1. On the day of the test I like to meet with both people in the relationship.  I have the pretest discussion regarding the relevant issue to be tested.  This is done very respectfully and in a professional manner to see if agreement can be reached on the type of relevant questions to be asked.  Basic polygraph training dictates that you should never ask a question that would be considered a state of mind. A good example of this is: “Do you love your wife?” or “Do you plan to stay married to your wife?”  The relevant questions have to be on one issue and they have to be about something that did or did not happen. By having this pretest discussion you can eliminate the problem of not asking the right relevant questions that the other person in the relationship is concerned about.

2.  After this discussion I do the test alone and no one else is in the room except the examinee.

3.  After the data collection phase of the polygraph the couple goes on their way. I take a very careful approach to analyzing the polygraph charts. I use several algorithms and I do a manual numerical scoring of the                 qualifying charts. I often even send the charts to another competent examiner to do a blind score review of the data.  I usually have my results completed within 48 hours.

In this particular case, when I met with this couple, I immediately observed that the husband was very dominant and was convinced that his wife was cheating on him.  He insisted that he had evidence of this adulterous act.  He claimed that a recording that he had made surreptitiously depicted and was proof that his wife engaged in sex with someone else.  He did not provide me with a copy of the recording but assured me that it clearly depicted his wife engaged in a sex act with someone else.

When the husband left the room, I began my pretest interview with the examinee. She vehemently denied that she has had sexual relations with anyone else since being married. She came across very honest in her demeanor. Her body language is very consistent with what she was telling and she was very convincing. She advised that her husband had a recording but it was not in substance what he thought it was.  She went on to explain that her husband has had trust issues in the past. She was taking the test to prove to him that the recording was not in fact her or anyone engaged in a sex act.  The examinee reports that her husband is very obsessed and he is extrapolating the recording well beyond reason.  She went on to explain that she played the recording for their minister and he agreed with her that it did not depict her or anyone engaged in the sex act.  After the pretest interview, I collected several good charts that were free of artifacts or other anomalies. I advised the couple that after I completed my analysis work I would send them a report as requested via email.

My conclusion based on my analysis of the polygraph charts was that there was deception indicated.  I issued a report and emailed it to both parties. A short time later, I received an email reply from the examinee’s husband simply indicating that the received a report and he thanked me for my services.  About 1 to 2 days later I received a call from a friend of the examinee who was concerned that a mistake had been made on the test. She advised that the examinee was honest and was telling the truth about her fidelity.  I told her that I do not retest people who are clearly deceptive on their charts. This friend told me that the reason the examinee failed was because her husband was in the other room and she could hear him occasionally talking. I explained to the friend that I would review the video recording to see if I can hear what she had just described. During the test I did not make note of any outside noise that I believed was distracting.  I told the examinee’s friend that if the examinee called and told me that the reason she failed the test was because she could hear her husband talking in the waiting room, I would consider retesting her.

The next day at work I reviewed the case video and determine that there were some sounds that could have been the examinee’s husband talking in the other room. The voice was muffled on the recording but I could hear something clearly. A short time later I received a call from the examinee who insisted that she was being honest about fidelity during the test. I warned the examinee that it was highly unlikely that the result would be anything but what I reported previously.  The examinee insisted on being retested.  I asked her to come to the appointment alone or at least not with her husband.  I did not want a repeat situation as reported on the first test.

On the second test the examinee came in without her husband as requested. She appeared to be very confident and relieved that her husband was not accompanying her. During the pretest interview she again reiterated that the reason she failed the test was because she could hear her husband talking in the waiting room.  I structured a very narrow single issue relevant question test. The issue was, “Did the examinee have sexual relations with anyone during her marriage other than with her husband?” After collecting polygraph charts, I told the examinee that I would analyze the data and send her a second report. However, this time the examinee requested that I send the report to a third-party because her husband had become very verbally abusive since her last test.  She did not want to do anything to aggravate their relationship unless it was good news.

After carefully analyzing the charts and obtaining a second opinion on her charts, I determined that there were indications of deception again reflected in her polygraph data. My opinion was in conflict with my personal intuition about her veracity but good examiners never issue a finding in polygraph based on intuition.  I should note two important things that examiners do pay attention to during the polygraph interview.

1.  All examiners note the body language of the examinee and at least determine if it is congruent with what the person is saying
2.  Most examiners also consider the verbal responses to the questions during the pretest interview as an indicator of veracity.

When the above observations are incongruent with the polygraph charts the confidence level in the reliability of the polygraph opinion begins to diminish.  In other words, when everything is congruent there is a high confidence level in the opinion made on the polygraph charts.  Regardless of the points made above, the examiner’s opinion should not be formulated on anything but supported polygraph data (polygraph charts). Polygraph examiners are trained to be objective and base their final opinions on the polygraph data even if other observable traits are noted during the test that would be in conflict with that opinion. In this case the data very clearly indicated deception but her body language and verbiage appeared to be truthful. This is a very perplexing situation for a polygraph examiner. All examiners want to be correct in their opinion but if opinions were made on anything but the polygraph data the reliability of polygraph will become significantly less than chance. So putting this another way, examiners can issue an opinion and still not have a very high confidence level in that opinion.  This was my dilemma after the second test was analyzed.

After a few days had passed the examinee sent me the following email after she received my second report.

“I was telling the truth, but thank you for all of your efforts. If I thought in a million years that I would fail, I would have never taken this exam. God only knows the truth and I pray that my husband will realize the truth. Even though I failed the exam the audio engineer clearly stated that there was no sexual activity on the tape. Even a pastor listened to the audio and agreed I was innocent. My husband constantly reminds me that I failed the polygraph test and his beliefs were confirmed. He feels justified in all of the physical and verbal abuse he has released upon me for cheating and lying about it. I am in the 5% that the test is not accurate. My life is forever changed because of my reliance upon the polygraph results.”

After receiving this email I have become less confident in my opinion. The one thing that examiners fear the most is that they will call someone a liar when they are telling the truth. These kinds of test results will shake an examiners confidence but one should never lose sight of the fact that polygraph testing is not perfect but it is statistically reliable.  This is one test that will haunt this examiner for many years to come.

 

Employee Theft

Workplace Thefts

Workplace polygraph testing has declined since the passage of the American polygraph Protection Act.  The Employee Polygraph Protection Act of 1988 (EPPA) generally prevents employers from using lie detector tests, either for pre-employment screening or during the course of employment, with certain exemptions. Employers generally may not require or request any employee or job applicant to take a polygraph test, or discharge, discipline, or discriminate against an employee or job applicant for refusing to take a test or for exercising other rights under the Act. In addition, employers are required to display the EPPA poster in the workplace for their employees.

There are exceptions to the law:

Subject to restrictions, the Act permits polygraph tests to be administered to certain job applicants of security service firms (armored car, alarm, and guard) and of pharmaceutical manufacturers, distributors, and dispensers. Also Federal, State and local governments have exempted themselves from the law.

Subject to restrictions, the Act also permits polygraph testing of certain employees of private firms who are reasonably suspected of involvement in a workplace incident (theft, embezzlement, etc.) that resulted in specific economic loss or injury to the employer.

Where polygraph examinations are allowed, they are subject to strict standards for the conduct of the test, including the pretest, testing, and post?testing phases. An examiner must be licensed in States that require it and be bonded or have professional liability coverage. The Act strictly limits the disclosure of information obtained during a polygraph test.

The American Polygraph Protection Act (EPPA) provides that employees have a right to employment opportunities without being subjected to lie detector tests, unless a specific exemption applies. Where polygraph examinations are allowed, they are subject to strict standards at the pre-test, testing, and post-testing stages. Specific notices must be given to employees or prospective employees. The Act also provides employees the right to file a lawsuit for violations of the Act. In addition, the Wage and Hour Division accepts complaints of alleged EPPA violations.

There are specific notices that must be given to examinees and examiners in instances where polygraph tests are permitted:

When a polygraph test is administered pursuant to the economic loss or injury exemption, the employer is required to provide the examinee with a statement prior to the test, in a language understood by the examinee, which fully explains the specific incident or activity being investigated and the basis for testing particular employees. The statement must contain, at a minimum, the following information:

  • An identification with particulars on the specific economic loss or injury to the business of the employer
  • A description of the employee’s access to the property that is the subject of the investigation
  • A detailed description of the basis of the employer’s reasonable suspicion that the employee was involved in the incident or activity under investigation
  • The signature of a person (other than the polygraph examiner) authorized to legally bind the employer

Every employer who requests an employee or prospective employee to submit to a polygraph examination, pursuant to the ongoing investigation must provide:

  • Reasonable written notice (at least 48 hrs.) of the date, time, and place of the examination and the examinee’s right to consult with legal counsel or an employee representative before each phase of the test.
  • Written notice of the nature and characteristics of the polygraph instrument and examination
  • Extensive written notice explaining the examinee’s rights, including a list of prohibited questions and topics, the examinee’s right to terminate the examination, and the examinee’s right to file a complaint with the Department of Labor alleging violations of EPPA

Employers must also provide written notice to the examiner identifying the persons to be examined.

Where the American Polygraph Protection Act (EPPA) permits the administration of polygraph tests, recordkeeping requirements apply both to employers and polygraph examiners. Employers and polygraph examiners must retain required records for a minimum of three years from the date the polygraph examination is conducted (or from the date the examination is requested if no examination is conducted).

Employers investigating an economic loss or injury must maintain a copy of the statement that sets forth the specific incident or activity under investigation and the basis for testing that particular employee and proof of service of that statement to the examinee.

Employers who manufacture, distribute, or dispense controlled substances must maintain records specifically identifying the loss or injury in question and the nature of the employee’s access to the person or property that is the subject of the investigation.

Every employer who requests an employee or prospective employee to submit to a polygraph examination pursuant to the ongoing investigation, drug manufacturer, or security services EPPA exemptions must maintain:

  • A copy of the written statement that sets forth the time and place of the examination and the examinee’s right to consult with counsel
  • A copy of the written notice provided by the employer to the examiner identifying the persons to be examined
  • Copies of all opinions, reports or other records furnished to the employer by the examiner relating to such examinations

All polygraph examiners must maintain all opinions, reports, charts, written questions, lists, and other records relating to polygraph tests of such persons, as well as records of the number of examinations conducted during each day, and the duration of each test period.

All exempt private sector employers and polygraph examiners retained to administer examinations to persons identified by employers must keep the required records safe and accessible at the place or places of employment or business or at one or more established central recordkeeping offices where employment or examination records are customarily maintained. If the records are maintained at a central recordkeeping office, other than in the place or places of employment or business, such records must be made available within 72 hours following notice from the Secretary of Labor or an authorized representative such as Wage and Hour Division personnel.

More detailed information, including copies of explanatory brochures and regulatory and interpretative materials, may be obtained from a local Wage and Hour office(http://www.dol.gov/whd/america2.htm).

The Department of Labor provides employers, workers, and others with clear and easy-to-access information and assistance on how to comply with the Employee Polygraph Protection Act. Compliance assistance related to the Act, including the Employee Polygraph Protection Act (EPPA) Fact Sheet(http://www.dol.gov/whd/regs/compliance/whdfs36.pdf), and regulatory and interpretive materials, is available on the Compliance Assistance “By Law”(http://www.dol.gov/compliance/laws/comp-eppa.htm) Web page.

After reading the above no wonder employers sometime decline to use the polygraph test as a tool to learn the truth.   Just remember you can use polygraph test in the workplace when you comply with the EPPA Law.

I’m going to tell you about one incident where it was used.  However, I have changed the names and other identifying information to protect the identities of the parties involved and no inferences should be drawn to imply that any particular employees took these tests under EPPA.

This case involves stolen items from the employer’s product inventory.  These items amounted to several thousand dollars in value.  The property was stolen over a three month time frame and only three employees had access to the missing property.  The owner of the company called this examiner and wanted to test all of his employees.  He thought this would be a fair approach.  He explained that if he tested everyone he was not singling out any.

I explained the EPPA law to him and advised to only test employees that he articulate reasonable suspicion against.  As it turned out there were three (3) employees that had limited access to the property taken and he could define reasonable suspicion about.  He employed me to do three tests.

The tests were scheduled with 48 hour notice in advance.  The first employee was fairly new.  He had only been working for him for about six (6) months. He was known to have been having financial problems.  The second employee was a department supervisor and longtime employee.  The third was an employee that had admitted small thefts in the past but denied that he had taken any of the property in question.

When I analyzed the polygraph data I told the employer that his longtime employee was the only one that failed the test.  He was shocked and surprised about my findings. He told this examiner that he would think about my results for a while before confronting this employee.  I did not tell any of the employees what the results of their tests were.

About two days later I got a call from the employer advising that the trusted employee that failed the test confessed.  She confessed not only to what was reported missing but also to several other items that the employer did not even know were missing.

He turned over his investigative information to the police and the employee was prosecuted.  He recovered or received restitution for all of his stolen property. Needless to say, he fired the employee.

Another Immigration Case

This post deals with an immigration case that is currently under litigation. I have omitted the names of the principles and some of the factual information in order to protect the identities of the parties. Please take no reference from this article that I am referring to any particular parties. This post is about a case that is rather typical but it is based on real-life circumstances.

Earlier this year, I received a call from an immigration attorney wanting polygraph tests. This attorney hoped to support his client’s statements regarding why they got married. His clients contended that they married for love and other typical matrimonial reasons. This attorney hoped that the polygraph tests would help prove to immigration authorities that his clients did not get married to evade immigration regulations or laws.

This particular couple met each other over six years ago and continually dated until around 2009 when they got married. Like most couples they had various arguments and brief separations from each other. The unusual part of their case was they both were immigrants from other countries. The wife was an immigrant from Europe and her husband was immigrant from Pakistan.

For the rest of this article, I will refer to this couple as husband and wife to protect their identities. The wife in this case was naturalized as a US citizen around 2003. The wife had been recently divorced from her US citizen husband when she met her current husband. He had entered the country on a student visa but later dropped out of school and re-applied for a visa to work for a family owned business.

As most people know, immigration rules take a lot of time. The husband was trying to comply with everything but at some point was denied an immigration work visa. He was soon to be deported. His then girlfriend, soon to become his wife, agreed to marry him quickly before his deportation. As you might imagine, immigration thought that this marriage was being consummated to evade deportation regulations. The couple insisted, that the timing of their plans to get married might have been influenced by the deportation order but they were getting married because they love each other. The timing of the marriage could not have been worse from the standpoint of immigration authorities.

The relevant questions on their respective polygraph tests were about:did this couple get married for love or was it to evade immigration law. Both the husband and wife took polygraph tests and passed. Polygraph supported the husband’s and wife’s contentions that they were married for love. This case is currently being adjudicated and when I have an outcome of the case I’ll post it on this blog.

Use of Polygraph in Immigration Cases

The Immigration Case
 Based on a true polygraph case

 

An ever increasing number of immigration cases are utilizing polygraph tests to determine the immigrant’s truthfulness about deportation issues.   This article is based on a resent polygraph examination.  I have not included and identifying information about the immigrant.  No one should infer or claim that this is about any pending case.  The following described polygraph case is about an immigrant who pled guilty to a drug charge and also lied to the sentencing judge under oath.  He told the judge he was a U.S. citizen.  Somehow U.S. Immigration Services found out about his guilty plea conviction and his perjured testimony. 

The immigrant claimed when confronted that he lied but was acting on advised from his attorney.  He made the false claim of U.S. Citizenship because he was directed to do so by counsel.  During the hearing the judge asked the emigrant directly if he was a U.S. citizen two times. Both times, the immigrant claim to be a citizen.

Then a few months ago immigration authorities came knocking at the immigrant’s door. The emigrant was incarcerated in a local jail without bail pending an investigation and possible deportation.  An interesting relevant polygraph issue for testing developed because of this case.  It was the opinion of the immigrant’s attorney that if his client was telling the truth about being instructed to lie in court, immigration Services’ decision on deportation might be effected.  The current defense attorney believed that if his client passed a polygraph, Immigration Services might look more favorable toward his client and the fact that he passed the polygraph would help to keep him from being deported.   

The first polygraph examination session with this emigrant didn’t go very well.   This examiner found the emigrant to be highly nervous and unable to sit still. After collecting three polygraph charts the test was discontinued.  No opinion could be obtained from the collected chart.   The following week this examiner again conducted another polygraph session with the immigrant.  During this second session the immigrant continued to claim that during his initial meeting with his counsel he had a discussion regarding his immigration status and that his attorney told him to lie to the court if asked about his immigration status.

During the second session with this examinee, the polygraph charts were collected without any notable anomalies on the immigrant’s polygraph charts, movements, deep breathing, etc. Upon evaluating the polygraph charts however I found indications of deception.  It is my opinion and belief that this immigrant was lying when he said that his attorney told him to lie in court.  I believe that he is making up the allegation against the attorney as a defense to avoid deportation. Based on the polygraph analysis, I do not believe that the immigrant was telling the truth on this relevant issue.  

In this particular case the emigrant was unfortunately lying but had he been telling the truth the U.S. Immigration Service and U.S. Attorney were willing to accept the polygraph results in support of the immigrant’s claims about what his defense attorney told him. It would have been interesting to see what a truthful polygraph result would have had is this case.  

Why I don’t do polygraph tests in client’s home!

Recently there was a true story printed in the Virginia Polygraph Association’s New Letter, April 2012 Addition, about what can go wrong when you do a polygraph test in a client’s home. The full article can be read at http://vapolygraph-org.webs.com/vpanewsletter.htm.
I don’t do polygraph tests in client’s homes. This article, although extreme, points out why an examiner should not do tests in a client’s home especially in fidelity issue cases.

Lie Detector Test in Maryland

If you want to use or take a lie detector test in Maryland you should know what laws apply.  There are no laws, regulations or licensing regulating polygraph examiners. However, Maryland has a very old law mostly dealing with employment.  Under Maryland law, an employer may not require or demand a polygraph test as a condition of employment, prospective employment, or continued employment.  Maryland even makes employers provide the follow disclaimer.

State of Maryland Polygraph Law Disclaimer

This disclosure is required by the laws of the State of Maryland for all applicants for employment.

“Under Maryland Law an employer may not require or demand any applicant for employment, prospective employee, or any current employee, to submit to, or take, a polygraph, lie detector or similar test or examination as a condition of employment or continued employment. Any employer who violates this provision is guilty of a misdemeanor and subject to a fine not to exceed $100.”

However the same law exempts Federal, State and local governments. So if you are looking for a job within Maryland in the public sector you may be required to take a polygraph.  Each level of government may have different requirements so check the conditions and requirements for employment carefully.   If you are applying for a job in law enforcement you will most likely be required to take some kind of lie detector test.

There are also Federal laws that apply to employers in the State of   Maryland.  This law is known as the American Polygraph Protection Act or EPPA.  Follow this link for EPPA laws.

Who may take a lie detector or polygraph tests?

1.  Anyone who wants to volunteer to take a test other than where prohibited by law. Polygraph tests are given or used with the treatment of sexual offenders.  People on parole or probation that are enrolled in mandated sex offender treatment.  These types of examinations are administered by both the Maryland State Police and private examiners.

2.  Defendants accused of crimes may elect to take a polygraph given by law enforcement or private examiners.  Results are not generally admitted into evidence at the time of trial but results may be very helpful to a defense attorney during discussion or negotiations with prosecutors. I’ll blog more about criminal defense polygraph tests later.

4.  The lie detector is now also commonly used to verify a person’s claim of fidelity.

If you would like more information call me at my office located at 111 North Potomac Street Hagerstown, Maryland 21740.  You also may follow me on Tweeter and other social networks.

 

How Polygraph Examiners Protect Against Errors

Polygraph testing has been shown to be very accurate – with between 85% and 95% correct results – but errors do sometimes occur. There are many reasons why this can be the case, such as failure to properly prepare the test subject for the exam, improper question formulation, or a misreading of the physiological data on the polygraph charts.

When an error occurs, it is called either a “false positive” or a “false negative.” A false positive means that a truthful test subject is reported as deceptive, and a false negative means that a deceptive test subject is reported as truthful.

It is very unlikely for a test subject to change a result from “deceptive” to “truthful,” and most attempts to deceive an exam will result in an inconclusive result. The best way to ensure that your exam is accurate is to disclose any psychological or physical conditions you have. The examiner will be aware if it is possible for the condition to affect the results and can take it in account when administering the test.

Examiners recognize that any error can be damaging, so they are trained to look for attempts to control breathing or heart rate, impairment due to drugs or alcohol, or other factors that may affect results upon meeting the subject and during the pre-test. Additional protective procedures that are taken to ensure an unbiased exam include:

  • an assessment of the examinee’s emotional state
  • medical information about the examinee’s physical condition
  • specialized tests to identify the overly responsive examinee and to calm the overly nervous
  • control questions to evaluate the examinee’s response capabilities
  • factual analysis of the case information
  • a pre-test interview and detailed review of the questions
  • quality control reviews

If you believe that an incorrect reading was given, you have recourse. First, you can request a second examination be made or retain a different examiner to get a second opinion. You can also file a complaint with the state licensing board (if your state has one) and a complaint with the Department of Labor under EPPA. Additionally, if the polygraph examiner is a member of the American Polygraph Association, you can request the assistance of the organization.

Sources:
American Polygraph Association
The Polygraph Guy – FAQs

Can You Beat the Polygraph Test

I came across the following link on You Tube and I think it is right on point.   Click on the short video and see for yourself:  http://www.youtube.com/watch?v=gt3ninRIsSs&feature=related

Why You Can’t “Beat” the Polygraph Test

One of the major concerns for any polygraph test is accuracy. Whether you are taking the test yourself or waiting on the results of someone else’s test, you want to ensure that there are no factors that get in the way of a correct result. For this reason, polygraph examiners receive training in spotting attempts to “trick” the exam, and they also take steps to ensure that outside factors, such as medications, illegal drugs, psychological conditions, physical conditions, and the emotional state of the test subject, do not affect the ultimate results. Here are answers to some common concerns that clients express before taking an exam.

Can nervousness make me appear guilty when I’m not?

No. Being nervous about taking an exam is common, whether you plan to lie or tell the truth, but if you are feeling nervous, you will be nervous throughout the test. If you are lying or telling the truth for each question, your internal body reaction will be specific for that answer, so your nervousness and this reaction will appear differently on the charts.

Does high blood pressure affect the results?

No. Blood pressure is one of the physiological reactions that is measured during the polygraph exam, but having high blood pressure will not affect the results. Just like with nervousness, your blood pressure will appear high throughout the exam. But if you are taking medication for your high blood pressure, it’s in your best interest to disclose this to your examiner so he or she can evaluate its effect on the test.

Can you take drugs to “beat” the exam?

No. Contrary to some claims, anti-depressants such as Lithium, Prozac, Valium, Ritalin, or Xanax will not trick the machine. During the pre-test process, the examiner will notice skewed results and can determine whether or not the polygraph can be accurately given while the subject is on the drugs. In most cases where drugs are used illegally in an attempt to “beat” the test, the examiner will give an “inconclusive” result and may recommend that a drug test be given before a second exam.

Should I stop taking medications before the exam?

If you are on medication prescribed by a doctor, you should continue to use them as you normally do, but disclose this information to the examiner. The effects of the drugs should not affect the results of the exam, but the examiner will be aware in case he or she has any concerns about accuracy.

Can the test subject use pain to attempt to beat the exam?

They can try, but examiners are aware that people attempt to fool the test by self-inflicting pain, such as pricking themselves with a tack, and are on the look out for any suspicious behaviors or movements. Additionally, most often the subject’s deceptive responses will create more measurable responses than the pain does during other questions.

Trained polygraph examiners take protective measures to ensure that the exam is unbiased, which is why it’s so important to ensure that you hire a polygraph examiner who has received proper training and is a member of a recognized organization, such as the APA, NPA, or a local polygraph association.

In my next blog, I’ll explain the protective procedures that polygraph examiners take and also the recourses available if you believe that your polygraph exam was incorrect.

Sources:
The Polygraph Examiner
American Polygraph Association
Accredited Polygraph Services – FAQs
The Polygraph Guy – FAQs