TITLE 29 UNITED STATES CODE CHAPTER 22
EMPLOYEE POLYGRAPH PROTECTION ACT
ˇ § 2001. Definitions.
ˇ § 2002. Prohibitions on lie detector use.
ˇ § 2003. Notice of protection.
ˇ § 2004. Authority of Secretary.
o (a) In general.
o (b) Subpoena authority.
ˇ § 2005. Enforcement provisions.
o (a) Civil penalties.
o (b) Injunctive actions by Secretary.
o (c) Private civil actions.
o (d) Waiver of rights prohibited.
ˇ § 2006. Exemptions.
o (a) No application to governmental employers.
o (b) National defense and security exemption.
o (c) FBI contractors exemption.
o (d) Limited exemption for ongoing investigations.
o (e) Exemption for security services.
o (f) Exemption for drug security, drug theft,
or drug diversion investigations.
ˇ § 2007. Restrictions on use of exemptions.
o (a) Test as basis for adverse employment action.
o (b) Rights of examinee.
o (c) Qualifications and requirements of examiners.
ˇ § 2008. Disclosure of information.
o (a) In general.
o (b) Permitted disclosures.
o (c) Disclosure by employer.
ˇ § 2009. Effect on other law and agreements.
Sec. 2001. Definitions
As used in this chapter:
ˇ (1) Commerce
The term ''commerce'' has the meaning provided by section 203(b)
of this title.
ˇ (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.
ˇ (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.
ˇ (4) Polygraph
The term ''polygraph'' means an instrument that -
o (A) records continuously, visually, permanently, and
simultaneously changes in cardiovascular, respiratory, and
electrodermal patterns as minimum instrumentation standards;
and
o (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.
ˇ (5) Secretary
The term ''Secretary'' means the Secretary of Labor.
Sec. 2002. Prohibitions on lie detector use
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 -
ˇ (1) directly or indirectly, to require, request, suggest, or cause any
employee or prospective employee to take or submit to any lie detector test;
ˇ (2) to use, accept, refer to, or inquire concerning the results of any
lie detector test of any employee or prospective employee;
ˇ (3) to discharge, discipline, discriminate against in any manner,
or deny employment or promotion to, or threaten to take any such action against -
o (A) any employee or prospective employee who refuses,
declines, or fails to take or submit to any lie detector test,
or
o (B) any employee or prospective employee on the basis of the
results of any lie detector test; or
ˇ (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 -
o (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,
o (B) such employee or prospective employee has testified or is
about to testify in any such proceeding, or
o (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.
Sec. 2003. Notice of protection
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.
Sec. 2004. Authority of Secretary
ˇ (a) In general
The Secretary shall -
o (1) issue such rules and regulations as may be necessary or
appropriate to carry out this chapter;
o (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
o (3) make investigations and inspections and require the keeping
of records necessary or appropriate for the administration of
this chapter.
ˇ (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.
Sec. 2005. Enforcement provisions
ˇ (a) Civil penalties
o (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.
o (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.
o (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.
ˇ (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.
ˇ (c) Private civil actions
o (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.
o (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.
o (3) Costs
The court, in its discretion, may allow the prevailing party
(other than the United States) reasonable costs, including
attorney's fees.
ˇ (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.
Sec. 2006. Exemptions
ˇ (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.
ˇ (b) National defense and security exemption
o (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.
o (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 -
o (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
o (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).
ˇ (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.
ˇ (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 -
o (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;
o (2) the employee had access to the property that is the subject
of the investigation;
o (3) the employer has a reasonable suspicion that the employee
was involved in the incident or activity under investigation; and
o (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.
ˇ (e) Exemption for security services
o (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.
o (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).
ˇ (f) Exemption for drug security, drug theft, or drug diversion
investigations
o (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.
o (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.
Sec. 2007. Restrictions on use of exemptions
ˇ (a) Test as basis for adverse employment action
o (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.
o (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.
ˇ (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:
o (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.
o (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.
o (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.
o (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.
o (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.
ˇ (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:
o (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.
o (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.
Sec. 2008. Disclosure of information
ˇ (a) In general
A person, other than the examinee, may not disclose information obtaine
during a polygraph test, except as provided in this section.
ˇ (b) Permitted disclosures
A polygraph examiner may disclose information acquired from a polygraph
test only to -
o (1) the examinee or any other person specifically designated in
writing by the examinee;
o (2) the employer that requested the test; or
o (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.
ˇ (c) Disclosure by employer
An employer (other than an employer described in subsection (a),
o () Disclosure by employer 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.
Sec. 2009. Effect on other law and agreements
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.