Southwest Florida Employment Law Blog : Southwest Florida Employment and Labor Lawyers & Attorneys for Discrimination Lawsuits and Civil Rights Cases in Fort Myers, Bonita Springs & Sanibel FL

I was asked recently whether an employer could require employees to submit to a lie detector test.  The answer, in almost all cases, is no.  The Employee Polygraph Protection Act of 1988 generally prevents employers from using lie detector tests either for pre-employment screening or during the course of employment, with certain limited exceptions. 

The EPPA prohibits an employer from requiring (or even asking) an employee or prospective employee to take a lie detector test.  It also prohibits an employer from using or inquiring about the results of any lie detector test taken by an employee or prospective employee.  Finally, the EPPA prohibits employers from discharging, disciplining, discriminating against, or denying employment to any employee or prospective employee for refusal to take a lie detector test, among other things.

Government employers are typically exempt from the EPPA.  All employers who are subject to the EPPA are required to post a notice on its premises.  You can download a copy here.  A good spot would be the location where other workplace notices -- OSHA, FLSA, etc. -- are posted.

If you have questions about the limited circumstances under which a private employer may use a polygraph test, please consult counsel before taking any action in that regard.  The EPPA not only allows the Department of Labor to assess money violations of up to $10,000 per violation; it also allows employees to bring a civil action for damages against the employer.  Better safe than sorry!

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Yesterday, the Equal Employment Opportunity Commission announced that a record number of private sector workplace discrimination charges were filed with the agency in its fiscal year 2010.  In its press release, the EEOC noted that 99,922 charges were filed, calling this figure an  "unprecedented level" of discrimination charges.  The statistics show the EEOC, through its combined enforcement, mediation, and litigation programs, secured more than $404 million in monetary benefits from employers. 

All major categories of charge filings increased last year.  Interestingly, but not surprisingly, retaliation charges surpassed race as the most frequently filed charge.  The EEOC also received 201 charges under the Genetic Information Nondiscrimination Act in its first year of enforcement.

In the press release, EEOC Chair Jacqueline A. Berrian stated:  "Discrimination continues to be a substantial problem for too many job seekers and workers, and we must continue to build our capacity to enforce the laws that ensure that workplaces are free of unlawful bias." 

What does this mean for employers?  Ms. Berrian's statement confirms the EEOC's commitment to step up its enforcement of anti-discrimination laws.  Employers should expect the upward trend in charge filings to continue, perhaps at an even more rapid pace.  The spike in retaliation claims should be a big warning light for employers -- you MUST take special caution when handling employees who have previously complained of discrimination, harassment, or other related workplace claims.  Even if the employee does not have a valid underlying claim, the employer can serve up a retaliation claim on a silver platter if not careful.

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Immediately after being sworn-in as Florida's Governor on Tuesday, Rick Scott signed several executive orders, including Executive Order 11-02, which will require state agencies to use E-Verify for all current and prospective agency employees.  Perhaps more importantly for our readers, the Executive Order also requires all employers who are state contractors to use E-Verify to check the work eligibility status of anyone employed in Florida during the contract term, and anyone (including subcontractors) hired to perform work pursuant to the state contract.

E-Verify is an online system provided by the Department of Homeland Security that allows employers to check the eligibility of an employee to work in the United States.  It is currently mandatory for most federal contractors and in a handful of states.  Until now, it was not mandatory for employers (other than federal contractors) in Florida.  It will be interesting to see whether Governor Scott eventually pushes to require all private employers to use E-Verify, a promise he made on the campaign trail.  For now, however, only state agencies, state contractors, and state subcontractors will be affected.

The text of the Executive Order instructs state agencies to include the E-Verify requirement for all state contractors and subcontractors expressly as a condition of state contracts.  Based on this wording, it appears this requirement will only affect new state contracts. 

Employers who hold state contracts should pay close attention as this requirement takes effect.  For more general information on E-Verify, check out the Department of Homeland Security and the U.S. Citizenship and Immigration Services websites.

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