-CITE-

29 USC CHAPTER 22 - EMPLOYEE POLYGRAPH PROTECTION 01/06/03

-EXPCITE-

TITLE 29 - LABOR

CHAPTER 22 - EMPLOYEE POLYGRAPH PROTECTION

-HEAD-

CHAPTER 22 - EMPLOYEE POLYGRAPH PROTECTION

-MISC1-

Sec.

2001. Definitions.

2002. Prohibitions on lie detector use.

2003. Notice of protection.

2004. Authority of Secretary.

(a) In general.

(b) Subpoena authority.

2005. Enforcement provisions.

(a) Civil penalties.

(b) Injunctive actions by Secretary.

(c) Private civil actions.

(d) Waiver of rights prohibited.

2006. Exemptions.

(a) No application to governmental employers.

(b) National defense and security exemption.

(c) FBI contractors exemption.

(d) Limited exemption for ongoing investigations.

(e) Exemption for security services.

(f) Exemption for drug security, drug theft, or

drug diversion investigations.

2007. Restrictions on use of exemptions.

(a) Test as basis for adverse employment action.

(b) Rights of examinee.

(c) Qualifications and requirements of examiners.

2008. Disclosure of information.

(a) In general.

(b) Permitted disclosures.

(c) Disclosure by employer.

2009. Effect on other law and agreements.

-SECREF-

CHAPTER REFERRED TO IN OTHER SECTIONS

This chapter is referred to in title 2 sections 1302, 1314, 1371,

1434; title 3 sections 402, 414.

-End-

-CITE-

29 USC Sec. 2001 01/06/03

-EXPCITE-

TITLE 29 - LABOR

CHAPTER 22 - EMPLOYEE POLYGRAPH PROTECTION

-HEAD-

Sec. 2001. Definitions

-STATUTE-

As used in this chapter:

(1) Commerce

The term "commerce" has the meaning provided by section 203(b)

of this title.

(2) Employer

The term "employer" includes any person acting directly or

indirectly in the interest of an employer in relation to an

employee or prospective employee.

(3) Lie detector

The term "lie detector" includes a polygraph, deceptograph,

voice stress analyzer, psychological stress evaluator, or any

other similar device (whether mechanical or electrical) that is

used, or the results of which are used, for the purpose of

rendering a diagnostic opinion regarding the honesty or

dishonesty of an individual.

(4) Polygraph

The term "polygraph" means an instrument that -

(A) records continuously, visually, permanently, and

simultaneously changes in cardiovascular, respiratory, and

electrodermal patterns as minimum instrumentation standards;

and

(B) is used, or the results of which are used, for the

purpose of rendering a diagnostic opinion regarding the honesty

or dishonesty of an individual.

(5) Secretary

The term "Secretary" means the Secretary of Labor.

-SOURCE-

(Pub. L. 100-347, Sec. 2, June 27, 1988, 102 Stat. 646.)

-MISC1-

EFFECTIVE DATE

Section 11 of Pub. L. 100-347 provided that:

"(a) In General. - Except as provided in subsection (b), this Act

[enacting this chapter] shall become effective 6 months after the

date of enactment of this Act [June 27, 1988].

"(b) Regulations. - Not later than 90 days after the date of

enactment of this Act, the Secretary shall issue such rules and

regulations as may be necessary or appropriate to carry out this

Act."

SHORT TITLE

Section 1 of Pub. L. 100-347 provided that: "This Act [enacting

this chapter] may be cited as the 'Employee Polygraph Protection

Act of 1988'."

-End-

-CITE-

29 USC Sec. 2002 01/06/03

-EXPCITE-

TITLE 29 - LABOR

CHAPTER 22 - EMPLOYEE POLYGRAPH PROTECTION

-HEAD-

Sec. 2002. Prohibitions on lie detector use

-STATUTE-

Except as provided in sections 2006 and 2007 of this title, it

shall be unlawful for any employer engaged in or affecting commerce

or in the production of goods for commerce -

(1) directly or indirectly, to require, request, suggest, or

cause any employee or prospective employee to take or submit to

any lie detector test;

(2) to use, accept, refer to, or inquire concerning the results

of any lie detector test of any employee or prospective employee;

(3) to discharge, discipline, discriminate against in any

manner, or deny employment or promotion to, or threaten to take

any such action against -

(A) any employee or prospective employee who refuses,

declines, or fails to take or submit to any lie detector test,

or

(B) any employee or prospective employee on the basis of the

results of any lie detector test; or

(4) to discharge, discipline, discriminate against in any

manner, or deny employment or promotion to, or threaten to take

any such action against, any employee or prospective employee

because -

(A) such employee or prospective employee has filed any

complaint or instituted or caused to be instituted any

proceeding under or related to this chapter,

(B) such employee or prospective employee has testified or is

about to testify in any such proceeding, or

(C) of the exercise by such employee or prospective employee,

on behalf of such employee or another person, of any right

afforded by this chapter.

-SOURCE-

(Pub. L. 100-347, Sec. 3, June 27, 1988, 102 Stat. 646.)

-SECREF-

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in title 2 section 1314; title 3

section 414.

-End-

-CITE-

29 USC Sec. 2003 01/06/03

-EXPCITE-

TITLE 29 - LABOR

CHAPTER 22 - EMPLOYEE POLYGRAPH PROTECTION

-HEAD-

Sec. 2003. Notice of protection

-STATUTE-

The Secretary shall prepare, have printed, and distribute a

notice setting forth excerpts from, or summaries of, the pertinent

provisions of this chapter. Each employer shall post and maintain

such notice in conspicuous places on its premises where notices to

employees and applicants to employment are customarily posted.

-SOURCE-

(Pub. L. 100-347, Sec. 4, June 27, 1988, 102 Stat. 647.)

-End-

-CITE-

29 USC Sec. 2004 01/06/03

-EXPCITE-

TITLE 29 - LABOR

CHAPTER 22 - EMPLOYEE POLYGRAPH PROTECTION

-HEAD-

Sec. 2004. Authority of Secretary

-STATUTE-

(a) In general

The Secretary shall -

(1) issue such rules and regulations as may be necessary or

appropriate to carry out this chapter;

(2) cooperate with regional, State, local, and other agencies,

and cooperate with and furnish technical assistance to employers,

labor organizations, and employment agencies to aid in

effectuating the purposes of this chapter; and

(3) make investigations and inspections and require the keeping

of records necessary or appropriate for the administration of

this chapter.

(b) Subpoena authority

For the purpose of any hearing or investigation under this

chapter, the Secretary shall have the authority contained in

sections 49 and 50 of title 15.

-SOURCE-

(Pub. L. 100-347, Sec. 5, June 27, 1988, 102 Stat. 647.)

-End-

-CITE-

29 USC Sec. 2005 01/06/03

-EXPCITE-

TITLE 29 - LABOR

CHAPTER 22 - EMPLOYEE POLYGRAPH PROTECTION

-HEAD-

Sec. 2005. Enforcement provisions

-STATUTE-

(a) Civil penalties

(1) In general

Subject to paragraph (2), any employer who violates any

provision of this chapter may be assessed a civil penalty of not

more than $10,000.

(2) Determination of amount

In determining the amount of any penalty under paragraph (1),

the Secretary shall take into account the previous record of the

person in terms of compliance with this chapter and the gravity

of the violation.

(3) Collection

Any civil penalty assessed under this subsection shall be

collected in the same manner as is required by subsections (b)

through (e) of section 1853 of this title with respect to civil

penalties assessed under subsection (a) of such section.

(b) Injunctive actions by Secretary

The Secretary may bring an action under this section to restrain

violations of this chapter. The Solicitor of Labor may appear for

and represent the Secretary in any litigation brought under this

chapter. In any action brought under this section, the district

courts of the United States shall have jurisdiction, for cause

shown, to issue temporary or permanent restraining orders and

injunctions to require compliance with this chapter, including such

legal or equitable relief incident thereto as may be appropriate,

including, but not limited to, employment, reinstatement,

promotion, and the payment of lost wages and benefits.

(c) Private civil actions

(1) Liability

An employer who violates this chapter shall be liable to the

employee or prospective employee affected by such violation. Such

employer shall be liable for such legal or equitable relief as

may be appropriate, including, but not limited to, employment,

reinstatement, promotion, and the payment of lost wages and

benefits.

(2) Court

An action to recover the liability prescribed in paragraph (1)

may be maintained against the employer in any Federal or State

court of competent jurisdiction by an employee or prospective

employee for or on behalf of such employee, prospective employee,

and other employees or prospective employees similarly situated.

No such action may be commenced more than 3 years after the date

of the alleged violation.

(3) Costs

The court, in its discretion, may allow the prevailing party

(other than the United States) reasonable costs, including

attorney's fees.

(d) Waiver of rights prohibited

The rights and procedures provided by this chapter may not be

waived by contract or otherwise, unless such waiver is part of a

written settlement agreed to and signed by the parties to the

pending action or complaint under this chapter.

-SOURCE-

(Pub. L. 100-347, Sec. 6, June 27, 1988, 102 Stat. 647.)

-SECREF-

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in title 2 section 1314; title 3

section 414.

-End-

-CITE-

29 USC Sec. 2006 01/06/03

-EXPCITE-

TITLE 29 - LABOR

CHAPTER 22 - EMPLOYEE POLYGRAPH PROTECTION

-HEAD-

Sec. 2006. Exemptions

-STATUTE-

(a) No application to governmental employers

This chapter shall not apply with respect to the United States

Government, any State or local government, or any political

subdivision of a State or local government.

(b) National defense and security exemption

(1) National defense

Nothing in this chapter shall be construed to prohibit the

administration, by the Federal Government, in the performance of

any counterintelligence function, of any lie detector test to -

(A) any expert or consultant under contract to the Department

of Defense or any employee of any contractor of such

Department; or

(B) any expert or consultant under contract with the

Department of Energy in connection with the atomic energy

defense activities of such Department or any employee of any

contractor of such Department in connection with such

activities.

(2) Security

Nothing in this chapter shall be construed to prohibit the

administration, by the Federal Government, in the performance of

any intelligence or counterintelligence function, of any lie

detector test to -

(A)(i) any individual employed by, assigned to, or detailed

to, the National Security Agency, the Defense Intelligence

Agency, the National Imagery and Mapping Agency, or the Central

Intelligence Agency,

(ii) any expert or consultant under contract to any such

agency,

(iii) any employee of a contractor to any such agency,

(iv) any individual applying for a position in any such

agency, or

(v) any individual assigned to a space where sensitive

cryptologic information is produced, processed, or stored for

any such agency; or

(B) any expert, or consultant (or employee of such expert or

consultant) under contract with any Federal Government

department, agency, or program whose duties involve access to

information that has been classified at the level of top secret

or designated as being within a special access program under

section 4.2(a) of Executive Order 12356 (or a successor

Executive order).

(c) FBI contractors exemption

Nothing in this chapter shall be construed to prohibit the

administration, by the Federal Government, in the performance of

any counterintelligence function, of any lie detector test to an

employee of a contractor of the Federal Bureau of Investigation of

the Department of Justice who is engaged in the performance of any

work under the contract with such Bureau.

(d) Limited exemption for ongoing investigations

Subject to sections 2007 and 2009 of this title, this chapter

shall not prohibit an employer from requesting an employee to

submit to a polygraph test 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; and

(4) the employer executes a statement, provided to the examinee

before the test, that -

(A) sets forth with particularity the specific incident or

activity being investigated and the basis for testing

particular employees,

(B) is signed by a person (other than a polygraph examiner)

authorized to legally bind the employer,

(C) is retained by the employer for at least 3 years, and

(D) contains at a minimum -

(i) an identification of the specific economic loss or

injury to the business of the employer,

(ii) a statement indicating that the employee had access to

the property that is the subject of the investigation, and

(iii) a statement describing the basis of the employer's

reasonable suspicion that the employee was involved in the

incident or activity under investigation.

(e) Exemption for security services

(1) In general

Subject to paragraph (2) and sections 2007 and 2009 of this

title, this chapter shall not prohibit the use of polygraph tests

on prospective employees by any private employer whose primary

business purpose consists of providing armored car personnel,

personnel engaged in the design, installation, and maintenance of

security alarm systems, or other uniformed or plainclothes

security personnel and whose function includes protection of -

(A) facilities, materials, or operations having a significant

impact on the health or safety of any State or political

subdivision thereof, or the national security of the United

States, as determined under rules and regulations issued by the

Secretary within 90 days after June 27, 1988, including -

(i) facilities engaged in the production, transmission, or

distribution of electric or nuclear power,

(ii) public water supply facilities,

(iii) shipments or storage of radioactive or other toxic

waste materials, and

(iv) public transportation, or

(B) currency, negotiable securities, precious commodities or

instruments, or proprietary information.

(2) Access

The exemption provided under this subsection shall not apply if

the test is administered to a prospective employee who would not

be employed to protect facilities, materials, operations, or

assets referred to in paragraph (1).

(f) Exemption for drug security, drug theft, or drug diversion

investigations

(1) In general

Subject to paragraph (2) and sections 2007 and 2009 of this

title, this chapter shall not prohibit the use of a polygraph

test by any employer authorized to manufacture, distribute, or

dispense a controlled substance listed in schedule I, II, III, or

IV of section 812 of title 21.

(2) Access

The exemption provided under this subsection shall apply -

(A) if the test is administered to a prospective employee who

would have direct access to the manufacture, storage,

distribution, or sale of any such controlled substance; or

(B) in the case of a test administered to a current employee,

if -

(i) the test is administered in connection with an ongoing

investigation of criminal or other misconduct involving, or

potentially involving, loss or injury to the manufacture,

distribution, or dispensing of any such controlled substance

by such employer, and

(ii) the employee had access to the person or property that

is the subject of the investigation.

-SOURCE-

(Pub. L. 100-347, Sec. 7, June 27, 1988, 102 Stat. 648; Pub. L.

103-359, title V, Sec. 501(n), Oct. 14, 1994, 108 Stat. 3430; Pub.

L. 104-201, div. A, title XI, Sec. 1122(b)(3), Sept. 23, 1996, 110

Stat. 2687.)

-REFTEXT-

REFERENCES IN TEXT

Executive Order 12356, referred to in subsec. (b)(2)(B), was Ex.

Ord. No. 12356, Apr. 2, 1982, 47 F.R. 14874, 15557, which was set

out as a note under section 435 of Title 50, War and National

Defense, prior to revocation by Ex. Ord. No. 12958, Sec. 6.1(d),

Apr. 17, 1995, 60 F.R. 19843, set out as a note under section 435

of Title 50. For provisions relating to special access programs,

see section 4.4 of Ex. Ord. No. 12958.

-MISC1-

AMENDMENTS

1996 - Subsec. (b)(2)(A)(i). Pub. L. 104-201 substituted

"National Imagery and Mapping Agency" for "Central Imagery Office".

1994 - Subsec. (b)(2)(A)(i). Pub. L. 103-359 inserted "the

Central Imagery Office," after "Defense Intelligence Agency,".

EFFECTIVE DATE OF 1996 AMENDMENT

Amendment by Pub. L. 104-201 effective Oct. 1, 1996, see section

1124 of Pub. L. 104-201, set out as a note under section 193 of

Title 10, Armed Forces.

-SECREF-

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in sections 2002, 2007, 2008, 2009 of

this title.

-End-

-CITE-

29 USC Sec. 2007 01/06/03

-EXPCITE-

TITLE 29 - LABOR

CHAPTER 22 - EMPLOYEE POLYGRAPH PROTECTION

-HEAD-

Sec. 2007. Restrictions on use of exemptions

-STATUTE-

(a) Test as basis for adverse employment action

(1) Under ongoing investigations exemption

Except as provided in paragraph (2), the exemption under

subsection (d) of section 2006 of this title shall not apply if

an employee is discharged, disciplined, denied employment or

promotion, or otherwise discriminated against in any manner on

the basis of the analysis of a polygraph test chart or the

refusal to take a polygraph test, without additional supporting

evidence. The evidence required by such subsection may serve as

additional supporting evidence.

(2) Under other exemptions

In the case of an exemption described in subsection (e) or (f)

of such section, the exemption shall not apply if the results of

an analysis of a polygraph test chart are used, or the refusal to

take a polygraph test is used, as the sole basis upon which an

adverse employment action described in paragraph (1) is taken

against an employee or prospective employee.

(b) Rights of examinee

The exemptions provided under subsections (d), (e), and (f) of

section 2006 of this title shall not apply unless the requirements

described in the following paragraphs are met:

(1) All phases

Throughout all phases of the test -

(A) the examinee shall be permitted to terminate the test at

any time;

(B) the examinee is not asked questions in a manner designed

to degrade, or needlessly intrude on, such examinee;

(C) the examinee is not asked any question concerning -

(i) religious beliefs or affiliations,

(ii) beliefs or opinions regarding racial matters,

(iii) political beliefs or affiliations,

(iv) any matter relating to sexual behavior; and

(v) beliefs, affiliations, opinions, or lawful activities

regarding unions or labor organizations; and

(D) the examiner does not conduct the test if there is

sufficient written evidence by a physician that the examinee is

suffering from a medical or psychological condition or

undergoing treatment that might cause abnormal responses during

the actual testing phase.

(2) Pretest phase

During the pretest phase, the prospective examinee -

(A) is provided with reasonable written notice of the date,

time, and location of the test, and of such examinee's right to

obtain and consult with legal counsel or an employee

representative before each phase of the test;

(B) is informed in writing of the nature and characteristics

of the tests and of the instruments involved;

(C) is informed, in writing -

(i) whether the testing area contains a two-way mirror, a

camera, or any other device through which the test can be

observed,

(ii) whether any other device, including any device for

recording or monitoring the test, will be used, or

(iii) that the employer or the examinee may (with mutual

knowledge) make a recording of the test;

(D) is read and signs a written notice informing such

examinee -

(i) that the examinee cannot be required to take the test

as a condition of employment,

(ii) that any statement made during the test may constitute

additional supporting evidence for the purposes of an adverse

employment action described in subsection (a) of this

section,

(iii) of the limitations imposed under this section,

(iv) of the legal rights and remedies available to the

examinee if the polygraph test is not conducted in accordance

with this chapter, and

(v) of the legal rights and remedies of the employer under

this chapter (including the rights of the employer under

section 2008(c)(2) of this title); and

(E) is provided an opportunity to review all questions to be

asked during the test and is informed of the right to terminate

the test at any time.

(3) Actual testing phase

During the actual testing phase, the examiner does not ask such

examinee any question relevant during the test that was not

presented in writing for review to such examinee before the test.

(4) Post-test phase

Before any adverse employment action, the employer shall -

(A) further interview the examinee on the basis of the

results of the test; and

(B) provide the examinee with -

(i) a written copy of any opinion or conclusion rendered as

a result of the test, and

(ii) a copy of the questions asked during the test along

with the corresponding charted responses.

(5) Maximum number and minimum duration of tests

The examiner shall not conduct and complete more than five

polygraph tests on a calendar day on which the test is given, and

shall not conduct any such test for less than a 90-minute

duration.

(c) Qualifications and requirements of examiners

The exemptions provided under subsections (d), (e), and (f) of

section 2006 of this title shall not apply unless the individual

who conducts the polygraph test satisfies the requirements under

the following paragraphs:

(1) Qualifications

The examiner -

(A) has a valid and current license granted by licensing and

regulatory authorities in the State in which the test is to be

conducted, if so required by the State; and

(B) maintains a minimum of a $50,000 bond or an equivalent

amount of professional liability coverage.

(2) Requirements

The examiner -

(A) renders any opinion or conclusion regarding the test -

(i) in writing and solely on the basis of an analysis of

polygraph test charts,

(ii) that does not contain information other than

admissions, information, case facts, and interpretation of

the charts relevant to the purpose and stated objectives of

the test, and

(iii) that does not include any recommendation concerning

the employment of the examinee; and

(B) maintains all opinions, reports, charts, written

questions, lists, and other records relating to the test for a

minimum period of 3 years after administration of the test.

-SOURCE-

(Pub. L. 100-347, Sec. 8, June 27, 1988, 102 Stat. 650.)

-SECREF-

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in sections 2002, 2006 of this title.

-End-

-CITE-

29 USC Sec. 2008 01/06/03

-EXPCITE-

TITLE 29 - LABOR

CHAPTER 22 - EMPLOYEE POLYGRAPH PROTECTION

-HEAD-

Sec. 2008. Disclosure of information

-STATUTE-

(a) In general

A person, other than the examinee, may not disclose information

obtained during a polygraph test, except as provided in this

section.

(b) Permitted disclosures

A polygraph examiner may disclose information acquired from a

polygraph test only to -

(1) the examinee or any other person specifically designated in

writing by the examinee;

(2) the employer that requested the test; or

(3) any court, governmental agency, arbitrator, or mediator, in

accordance with due process of law, pursuant to an order from a

court of competent jurisdiction.

(c) Disclosure by employer

An employer (other than an employer described in subsection (a),

(b), or (c) of section 2006 of this title) for whom a polygraph

test is conducted may disclose information from the test only to -

(1) a person in accordance with subsection (b) of this section;

or

(2) a governmental agency, but only insofar as the disclosed

information is an admission of criminal conduct.

-SOURCE-

(Pub. L. 100-347, Sec. 9, June 27, 1988, 102 Stat. 652.)

-SECREF-

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in section 2007 of this title.

-End-

-CITE-

29 USC Sec. 2009 01/06/03

-EXPCITE-

TITLE 29 - LABOR

CHAPTER 22 - EMPLOYEE POLYGRAPH PROTECTION

-HEAD-

Sec. 2009. Effect on other law and agreements

-STATUTE-

Except as provided in subsections (a), (b), and (c) of section

2006 of this title, this chapter shall not preempt any provision of

any State or local law or of any negotiated collective bargaining

agreement that prohibits lie detector tests or is more restrictive

with respect to lie detector tests than any provision of this

chapter.

-SOURCE-

(Pub. L. 100-347, Sec. 10, June 27, 1988, 102 Stat. 653.)

-SECREF-

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in section 2006 of this title.

-End-