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«EMPLOYEE RIGHTS 1 (People’s Law School) I. Types of Employment: A. Private Sector Employment: 1. “Golden Rule” Employment”At-will” ...»

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In 1988 Congress passed the Employee Polygraph Protection Act of 1988 (EPPA) 29 U.S.C. §2001 et seq. The Act prohibits most private employers from using lie detector tests, either for pre-employment screening or during the course of employment.

Employers generally may not require or request any employee or job applicant to take a lie detector 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.

Lyons Law Firm th 512 South 8 Street ΠLas Vegas, Nevada 89101 Employee Rights Peoples Law School Page 25 However, 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. Furthermore, the Act permits polygraph testing of employees of private companies who are reasonably suspected of involvement in a workplace incident (theft, embezzlement, etc.) that resulted in specific economic loss or injury to the employer.

When 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 and bonded or have professional liability coverage. The Act strictly limits the disclosure of information obtained during a polygraph test.

When a polygraph test is administered pursuant to the economic loss or injury exemption, the employer is required to provide the employee with a statement prior to the test, in a language understood by the employee, 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 Furthermore, 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 exemptions, must provide:

Reasonable written notice of the date, time, and place of the examination and the employee or prospective employee’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 employee or prospective employee's rights, including a list of prohibited questions and topics, the employee or prospective employee’s right to terminate the examination, and to file a complaint

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with the Department of Labor alleging violations of the Act Employers must also provide written notice to the examiner identifying the persons to be examined.

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

In American Elevator Company v. Briscoe, the Nevada Supreme Court held that a polygraph examination was not admissible to impeach the Plaintiff when the polygraph examination was used by Plaintiff’s counsel “to determine whether he was pursuing a fraudulent claim.” American Elevator Company v. Briscoe, 93 Nev. 665, 667, 572 P.2d 534, 536 (1977). Furthermore, “the results of the polygraph exam administered to respondent were purportedly unfavorable, and appellants doubtlessly intended to impeach him with that evidence.” Id. at 670, 537. The trial court precluded the appellant from using the exam results noting that there existed an attorney-client privilege and the evidence was “scientifically unreliable.” Id. The Court further

concluded:

We decide in these circumstances, that a polygraph examiner is not within our testimony-by-experts statute, NRS 50.275, since we are not satisfied that this type evidence has received general scientific acceptance. Nor are we here disposed to apply the normal standard of admissibility, which simply weighs the probative value of proffered evidence against traditional policy considerations, such as the possibilities of misleading, confusing, or prejudicing the jury or of unduly consuming judicial time.”

Id.

In Jackson v. State, the Nevada Supreme Court concluded that “any party to any criminal or civil action may refuse to agree to the stipulation of a polygraph test for any reason, or no reason at all.” Jackson v. State, 116 Nev. 334, 336, 997 P.2d 121, 122 (2000), (emphasis added). In Santillanes v. State, the Nevada Supreme Court ruled that the District Court erred when “it admitted over objection, testimony surrounding Santillanes failure to take [a] polygraph test to show Santillanes’ consciousness of guilt.” Furthermore, in Corbett v. State, the Nevada Supreme Court noted, “Of course, our decisions in American Elevator and Lischko establish the rule followed in Nevada in the absence of stipulation, i.e.: that polygraph evidence is inadmissible to impeach or corroborate the testimony of a witness.” Corbett v. State, 94 Nev. 643, 646, 584 P.2d 704, 706 (1978), (emphasis added), see also, State v. Lischko, 90 Nev. 221, 523 P.2d 6 (1974). The Court also noted, Still despite recognition of the technique’s potential accuracy, significant policy considerations militate against a general rule admitting results of polygraph tests which are performed without the concurrence of all parties. Foremost of these

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are fairness, and judicial efficiency. Inherent in the polygraph process are numerous variables which, if not properly monitored, can greatly reduce the reliability of the test results.

Id. Thus, for a polygraph examination to be admissible, “evidence of the results of a polygraph test is admissible if both parties have signed a written stipulation to that effect.” See, Santillanes v. State, 102 Nev. at 50, 714 P.2d at 186. Second, that the polygraph process must be reliable to insure fairness. See, Corbett v. State, 94 Nev. at 646, 584 P.2d at 704.

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