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  1. #1
    Join Date
    Sep 2014
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    Default Employee Polygraph Protection Act (EPPA) Violation by Employer

    My question involves labor and employment law for the state of: California


    My potential employer (a private and non government business) stated in writing on a form that they had me complete, that they were qualified for an exemption to the EPPA (Employee Polygraph Protection Act). After I had passed their background check, I got a call to tell me they had scheduled me to take the test the following day.
    I asked why they required pre-employment tests and the employers response was that "because their insurance requires it and so they can get lower rates." I was also told because they are able to tell their clients that all of their employees have passed a polygraph test and this makes them feel more comfortable. I asked if this was legal and was also told yes.

    The problem is they don't qualify for any of the exemptions under the federal law and even if they did, the California law is even more restrictive and has no exemptions except for government workers.
    In a perfect world I should be able to point this out, they realize the error of their ways, be willing to correct it and allow me to have the job. Right?

    But what occurred in the real world, is a bit different.
    They made me an offer for the position, but at a significantly lower pay rate than I was had been told on two previous occasions. We're talking about $10,000 less per year! I asked how I had been provided with conflicting information and the only response was to repeat the offer, along with take it or leave it. No mention of why or how the conflicting information occurred.

    I really need the job, but should I accept it and work for a company that either A) condones a hiring practice like telling an applicant they pay a higher rate until they make a written offer (I doubt this was the reason), B) The manager that interviewed me quoted the wrong pay rate twice (also doubtful as he's worked for them almost 10 years), or C)They are retaliating against me for refusing the polygraph and pointing out that it was illegal to do.

    Accepting the job would effect my unemployment benefits and change my health insurance rates. I'm not sure what would happen if they only gave me the chance to start working, while planning to fire me as soon as possible? I feel like I can't trust or rely on them to treat me fairly at this point.
    Are there any other options you see, or think of that I'm not considering? Does anyone know what kind of recourse is available for retaliation against an employee who complained about an employers illegal actions?
    Thank you.

  2. #2
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    Default Re: Employee Polygraph Protection Act (EPPA) Violation by Employer

    Quote Quoting honestly
    View Post
    ...should I accept it and work for a company that either A) condones a hiring practice like telling an applicant they pay a higher rate until they make a written offer (I doubt this was the reason), B) The manager that interviewed me quoted the wrong pay rate twice (also doubtful as he's worked for them almost 10 years)...
    Those are your choices to make.
    Quote Quoting honestly
    ...or C)They are retaliating against me for refusing the polygraph and pointing out that it was illegal to do.
    You hadn't told us to this point that you refused a polygraph. Did you in fact refuse the polygraph? Did you in fact argue that it was illegal, prior to getting the offer? You have not yet accepted the offer?
    Quote Quoting California Labor Code, Sec. 432.2.
    (a) No employer shall demand or require any applicant for employment or prospective employment or any employee to submit to or take a polygraph, lie detector or similar test or examination as a condition of employment or continued employment. The prohibition of this section does not apply to the federal government or any agency thereof or the state government or any agency or local subdivision thereof, including, but not limited to, counties, cities and counties, cities, districts, authorities, and agencies.

    (b) No employer shall request any person to take such a test, or administer such a test, without first advising the person in writing at the time the test is to be administered of the rights guaranteed by this section.

  3. #3
    Join Date
    Sep 2014
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    5

    Default Re: Employee Polygraph Protection Act (EPPA) Violation by Employer

    Sorry about the confusion. No, I did not go to take the test citing both the federal and state laws. I told them I could find no exemption that they would have qualified for based on the type of work, I requested to know what info they were relying on if they thought I was wrong, I respectfully asked that they rescind the previous polygraph requirement since it's not a illegal request, and asked to be given the job anyway since I had successfully passed every other test they had given to me. I was very happy that they offered me the job anyhow, making no mention of the polygraph test in the offer, but the pay rate was far below what I had been told during my interview. I responded by asking to negotiate the amount, as it was much lower than I was told the position paid. They pretty much flatly refused and offered no explanation for the difference. They also have not denied, that I was told this.

  4. #4
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    Dec 2009
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    Default Re: Employee Polygraph Protection Act (EPPA) Violation by Employer

    They are not legally obliged to pay your the rate they originally offered you, as long as the rate they actually pay you is not below minimum wage. They are also not legally obliged to tell you the reason for changing the rate.

  5. #5
    Join Date
    Sep 2014
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    5

    Question Re: Employee Polygraph Protection Act (EPPA) Violation by Employer

    I think we all know the reason why they changed the rate. Because I called them on there blatant and serious violation of the law and since they couldn't find another reason that would have justified not giving me the job. It was done so I wouldn't accept it.

    I once heard an expression that I really liked and stuck with me:
    Rights are just like muscles. Exercise them, Use them, Or you will lose them.

    So allow me to update you of todays events as I decided to report to work for my 1st day.
    I was met by the same guy who interviewed me, the one who had given me the higher pay rate, and with him....the woman from HR.
    I had to wonder what good that was going to be, as she sat by and allowed every employee to be pre-employment polygraphed. Good work HR!
    I began to fill out forms and came across the harassment policy that had a page for me to sign that acknowledged I received it blah blah blah.
    It also had a part that specified how it was my responsibility to report harassment and that I was promising to report it.
    What were they thinking!?! That I would go along with that? Puh-leaze.
    That's when it all started going downhill. It seems that even though I've provided them with all the information that proves they are in violation...its still their belief that they are exempt.
    Seriously??
    As far as the pay rate goes, up till now my every request to clarify the conflicting information, had not been addressed directly. I asked the manager if he recalled telling me the higher rate?
    He actually denied it. So game over.
    As much as I really needed the job, I will not go to work, for a supervisor willing to lie straight to my face.
    Since this company cares so much about knowing if people are telling the truth, why not strap that manager in and ask him if he told me the higher pay rate.
    You can't handle the truth! -Jack Nicolson

    I was able to get some answers that will help me prove this was retaliation. What they did was offer me a position, and used a title that I had not heard them use before. Turns out, its an entry level position for someone with no experience. This would explain the lower pay, and only makes the managers position even more unlikely as he admitted we discussed how one of the two positions would be working alone in the evenings. That's not something you would have a new person do. He also admitted telling me that he was looking for someone who already had some special training that is necessary to be granted access to some diagnostic tools. Definitely not something entry level would have.
    It all ended with me essentially saying that he's lying, and I can't work someplace if I can't trust my employer to be honest.

    I'm not done with them quite yet.
    I've been drawing up a rather seething letter to send them, right before I file my complaint with the Secretary of Labor.
    Here's a piece of it. If you would like to give me some input about what you think, I'd appreciate it.


    My 2 cents Letter.
    There was a very good reason these strict laws (both federal and state) were passed and put in place regarding polygraphs. They exist to protect most of us from the unreasonable use of a test that's known to be so unreliable, that it can't be admitted into evidence with in a court. These laws also put an end to illegal violations of our privacy from employers just like you who, who will place an employee's entire future on the results of a flawed test. When it went into effect, the 1988 Employee Polygraph Protection Act virtually ended its use on nearly every employee in the private sector.

    Oh, but not at (This Company)!
    You have conducted your business as though you are above the law and stomped all over the rights of every employee you've hired!
    We can all thank whoever it was, that authorized the unlimited use of polygraphs within your company, but couldn't be bothered to do even 5 minutes of research about why it gave employees protection and when, or how it was allowed and by who. It's blindingly clear that you don't have the slightest understanding about the very limited and few exemptions that exist under Federal law.

    Now I understand, even though I've brought all this to your attention, (The company's) position remains that you are exempt?
    (Let me state, to keep things simplified I will only be making reference to and addressing the pre-employment polygraph and not tests done when investigating specific economic losses or injury which have some slightly different rules.)
    So let's just pretend that you're right....and you do qualify for an exemption.

    Hope everyone's been doing their paperwork and that includes the person you hired to give the polygraph because in order to keep that "imaginary" exemption in tact, you'll have to show some pretty specific signed documentation (see below) for each and every single polygraph that you have required in the last 3 years.
    And when the Secretary of Labor rings you up asking for it, you'll need to make it available within 72 hours.


    Recordkeeping
    In the limited instances where 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).

    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, the 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.

    Source: http://www.dol.gov/compliance/guide/eppa.htm


    What do you guys think?
    Do you think I was being to nice?

  6. #6
    Join Date
    Mar 2012
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    1,360

    Default Re: Employee Polygraph Protection Act (EPPA) Violation by Employer

    I wouldn't send it. You made your point verbally. Just report them and see what happens.

  7. #7
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    Default Re: When Can an Employer Require a Drug Test

    Something could potentially result from a Department of Labor complaint, but it's difficult to say in advance what the result of that investigation might be, or what corrective measures might be taken.

    I feel for the OP, as I would not want to be placed in the position of being told, contrary to the law, that I had to take a polygraph examination if I wanted a job. If I needed the job under the OP's circumstances I would take it despite the reduced salary, but I would continue looking for other positions.

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