CONCURRENT RESOLUTIONS—APR. 16, 1996 110 STAT. 4405 SEC. 1.12 EXEMPTION FOR EMPLOYING OFFICES CONDUCTING INVES- TIGATIONS OF ECONOMIC LOSS OR INJURY. (a) Section 7(d) of the EPPA, incorporated into the CAA under section 225(f) of the CAA, provides a limited exemption from the general prohibition on lie detector use for employers conducting ongoing investigations of economic loss or injury to the employer's business. An employing office may request an employee, subject to the conditions set forth in sections 8 and 10 of the EPPA and sections 1.20, 1.22, 1.23, 1.24, 1.25, 1.26, and 1.35 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 employing office's operations, 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 emplojong office has a reasonable suspicion that the employee was involved in the incident or activity under investigation; (4) The employing office 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 operations of the employing office; (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 employing office'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 employing office; and (5) The employing office retains a copy of the statement and proof of service described in paragraph (a)(4) of this section for at least 3 years. (b) For the exemption to apply, the condition of an "ongoing investigation" must be met. As used in section 7(d) of the EPPA, the ongoing investigation must be of a specific incident or activity. Thus, for example, an employing office 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 employing office is precluded by the EPPA. Further, because the exemption is limited to a specific incident or activity, an employing office is precluded from using the exemption in situations where the so-called "ongoing investigation" is continuous. For example, the fact that items are frequently missing would not be a sufficient basis, standing alone, for administering a poly- graph test. Even if the employing office can establish that unusually high Eimounts of property are missing 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 missing property would be permitted where additional evidence is obtained through subsequent investigation of specific
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