STATEMENT OF STEPHEN J. MARKMAN ASSISTANT ATTORNEY GENERAL OFFICE OF LEGAL POLICY BEFORE THE EMPLOYMENT OPPORTUNITIES SUBCOMMITTEE HOUSE EDUCATION AND LABOR COMMITTEE UNITED STATES HOUSE OF REPRESENTATIVES CONCERNING H.R. 1212: EMPLOYEE POL

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP89B01356R000200250024-5
• Release Decision: RIFPUB
• Original Classification: K
• Document Page Count: 23
• Document Creation Date: December 27, 2016
• Document Release Date: December 13, 2012
• Sequence Number: 24
• Publication Date: March 5, 1987
• Content Type: MISC

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DRAFT
STATEMENT
OF
STEPHEN .7. MARXMAN
ASSISTANT ATTORNEY GENERAL
OFFICE OF LEGAL POLICY
BEFORE
THE
EMPLOYMENT OPPORTUNITIES SUBCOMMITTEE
HOUSE EDUCATION AND LABOR COMMITTEE
UNITED STATES HOUSE OF REPRESENTATIVES
CONCERNING
H.R. 1212: EMPLOYEE POLYGRAPH PROTECTION ACT
ON
MARCH 5, 1957
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Mr. Chairman and Members of the Subcommittee:
I appreciate the opportunity to appear on behalf of the
Department of Justice at this hearing on H.R. 1212, the proposed
'Employee Polygraph Protection Act.' This bill, if enacted,
would prohibit private sector employers from administering
polygraph examinations to employees or prospective employees.
The Department of Justice vigorously opposes federalizing
the law in this area. Such action is directly contrary to the
principles of federalism on which our union is based and to which
this Administration is deeply committed. Until now, regulating
polygraph use has been the responsibility of the states. In
fact, thirty-four states and the District of Columbia have
enacted statutes regulating the use of polygraph or other
'honesty' tests or polygraph examiners. To preempt the states in
this context, where there is no evidence of an overriding need
for national policy uniformity, would do violence to an important
underlying principle of our union -- the belief in the ability
and responsibility of the states generally to govern the affairs
of their citizens.
The attempt to federalize the law in this arena has
implications far beyond polygraph regulation; it is symptomatic
of the persistent tendency of government officials in Washington
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-- well meaning officials -- to act as if only we can fully
understand and remedy the problems confronting 240 million
Americans. It is this attitude that, in recent decades., has been
responsible for the mushrooming growth of a national government
that has not only undertaken unmanageable responsibilities, but
that also has usurped the decisionmaking authority of private
citizens and of the levels of government closest to those
citizens -- the states and their localities. It is an attitude
that is responsible for a steady succession of constitutional
debates within this country on Gramm-Rudman, on balanced budget
and tax limitation constitutional amendments, on item veto
initiatives, and on constitutional amending conventions.
This centralizing tendency is not difficult to understand.
It is not surprising that public officials and other citizens,
who believe that their public policy ideas are sound, want those
ideas to be imposed uniformly upon the fifty states. It is not
surprising that citizens who feel strongly about the merits of a
public program want to bestow that program upon as many of their
fellow-citizens as possible. And it is not surprising that a
business or other private entity subject to some form of public
regulation would prefer to abide by a single regulation
promulgated by Washington than to have to abide by fifty separate
regulations promulgated in Sacramento and Springfield and St.
Paul. It is precisely because each of us can understand the
impetus toward centralization of governmentalauthority that we
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have to be particularly careful to avoid falling victim to this
tendency and, in the process, undermining the constitutional
balances within our system of government.
As with many things elemental, there is a tendency sometimes
to give the principles of federalism short shift. I recognize
that it is not always easy to identify ? bright lino between
those responsibilities of government that ought to be carried out
by the national government and those more appropriately addressed
by the states. Even in this Administration, which is deeply
committed to ensuring that each level of government operates in
its appropriate sphere, we have sometimes had trouble drawing
that line. It is important, nevertheless, that those in the
executive and legislative branch not lose sight of the inherent
responsibility to confront this matter.
This responsibility is particularly acute given the Supreme
Court's recent decision in garcia v. Ban Antonio Metropolitan
Transit Authority, 105 8. Ct. 2005 (1985). In that case, the
Supreme Court held, with respect to federal regulation under the
commerce power, that Congress, not the federal courts, generally
is the primary protector of state sovereign rights and
responsibilities. As the Court observed,
We continue to recognize that the States
occupy a special and specific position in our
constitutional system and that the scope of
Congress' authority under the commerce clause
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must reflect that position. But the
principal and basic limit on the federal
commerce power is that inherent in all
congressional action -- the built-in
restraints that our system provides through
state participation in federal governmental
action.
In other words, the principal burden of protecting the values of
federalism in the commerce context lies with the Members of this
body. As representatives, not only of the citizens of the
states, but of the states themselves, it is the Congress that is
principally vested with the responsibility to preserve the
prerogatives of the states within the constitutional structure.
Whatever the merits of the Court's decision in Garcia -- and this
Administration opposes its holding and has supported past
legislative efforts to modify the Fair Labor Standards Act in
response -- its observations on the role of the Congress in
upholding federalism can hardly be disputed.
Because of their importance to this Subommittee's decision
on whether to proceed with H.R. 1212, I would like at this time
to briefly revisit the fundamental values of federalism. The
healthy respect for the states envisioned by the Framers requires
that the national government pay as much attention to who should
be making decisions as to what decisions should be made and that,
where appropriate, it defer to the states. It was the people of
the states who created the national government by delegating to
that government those limited and enumerated powers relating to
matters beyond the competence of the individual states. All
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other sovereign powers, except for those expressly prohibited the
states by the Constitution, are expressly reserved to the states
or the people by the Tenth Amendment.
The Framers of the Constitution set up a structure that
apportions power between the national and state governments. The
values that underlie this structure of federalism are not
anachronistic; they are not the result of an historic accident;
they are no less relevant to the United States in 1987 than they
were to our Nation in 1789. In weighing whether a public
function ought to be performed at the national or state level, we
should consider the basic values that our federalist system seeks
to ensure. Some of those principles include:
pispersal of Power -- By apportioning and compartmentalizing
power among the national and 50 state governments, the power of
government generally is dispersed and thereby limited.
Accountability -- State governments, by being closer to the
people, are better positioned as a general matter to act in a way
that is responsive and accountable to the needs and desires of
their citizens.
Participation -- Because state governments are closer to the
people, there is the potential for citizens to be more directly
involved in setting the direction of their affairs. This ability
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is likely to result in a stronger sense of community and civic
virtue as the people themselves are more deeply involved in
defining the role of their government.
Diversity -- Ours is a large and disparate nation; the
citizens of different states may well have different needs and
concerns. Federalism permits a variegated system of government
most responsive to this diverse array of sentiment. It does not
require that public policies conform merely to a low common
demoninator; rather, it allows for the development of policies
that more precisely respond to the felt needs of citizens within
different geographical areas.
competition -- Unlike the national government which is
necessarily monopolistic in its assertion of public authority,
the existence of the states introduces a sense of competition
into the realm of public policy. If, ultimately, a citizen is
unable to influence and affect the policies of his or her state,
an available option always exists to move elsewhere. This
option, however limited, enhances in a real way the
responsiveness of state governments in a way unavailable to the
national government.
,cpeTiinentiior -- The states, by providing diverse
responses to various issues which can be compared end contrasted,
servo as laboratories of public policy experimentation. Such
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experimentation is ultimately likely to result in superior and in
some instances naturally uniform policies, as states reassess
their own and other states' experiences under particular
regulatory approaches.
Lontainment -- Experimenting with varying forms of
regulation on a smaller, state scale rather than on a uniform,
national scale confines the harmful effects of regulatory actions
that prove more costly or detrimental than expected. Thus, while
the successful exercises in state regulation are likely to be
emulated by other states, the unsuccessful exercises can be
avoided.
While these values of federalism may often mitigate in favor
of state rather than national action, other factors -- including
a demonstrated need for national policy uniformity or for a
monolithic system of enforcement -- mitigate in favor of action
by the national government and must be balanced in this process.
For example, the need for a uniform foreign policy on the part of
the United States clearly justifies national rather than state
action in this area. Similarly, in the interstate commerce area,
the need for a uniform competition policy argues strongly for
national antitrust law: and the need for efficient flow of
interstate transportation argues for national rather than state
regulation of airplane and rail safety. In other words, by
federalism, we are not referring to the idea of 'state's rights':
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rather, we are referring to the idea expressed in the
Constitution that certain governmental functions are more
properly carried out at the level of the fifty states, while
others are more properly carried out by the national government.
While reasonable individuals may well differ on the
direction in which these and other factors of federalism point --
and that may well be the case in the context of R.R. 2.212 -- it
is nevertheless critical that we not lose sight of the need to go
through this analytic process.
When these factors are examined in the context of polygraph
regulation, the balance in the Administration's judgment is
clearly struck in favor of state, not national, regulation. Not
only is there no need for national enforcement or uniformity with
respect to private sector polygraph use, but the benefits of
leaving regulation to the states are evident; polygraph
regulation is a complex issue, subject to extensive ongoing
debate, in which a substantial number of reasonable responses are
available to (and have indeed been adopted by) the states.
Whether or not polygraphs should be regulated by some level
of government is not the issue here. Assuming that polygraphs
are abused by private employers -- and there is no question that
such abuse is possible -- the states are as capable as the
national government of recognizing and remedying any such
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problem. In fact, they have the greater incentive to do so since
the rights of their own citizens, to whom they are immediately
accountable, are involved. As / indicated earlier, 70% of the
states have already recognized a need for certain protections in
this area and have provided them through various forms of state
legislation.
There are ? number of interests that must be balanced in
determining whether or how to regulate polygraphs. For example,
while certain employees may be concerned about the intrusiveness
of polygraph regulation, other employees -- for example,
employees falsely accused of stealing from their employers -- may
desire the availability of polygraph tests in order to establish
their innocence.
Moreover, by protecting employees from the use of polygraph
tests, employers are necessarily restricted in their use of a
test that may help ensure they are hiring honest or firing
dishonest employees. No one can dispute the need for identifying
and discharging dishonest or thieving workers. From losses
reported during a recent random sampling of three industries --
retail department store chains, general hospitals, and electronic
manufacturing firms -- the National Institute of Justice
estimated that business and industry lose to employee theft five
to ten billion dollars annually. Not only are employers losing
valuable assets and paying higher prices for theft insurance
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policies, but, to the extent possible, employers pass on those
costs in the form of higher prices to consumers. Some of the
commodities diverted -- drugs, for example impose their own
costs on society. According to the Drug Enforcement t
Administration, legally produced drugs, falling in the wrong
hands, kill and injure twice as many people annually as illicit
drugs. DEA estimates that half a million to a million doses of
drugs are stolen each year by employees of pharmacies and
wholesale drug manufacturers and distributors.
Those opposed to the use of polygraphs will argue that the
test is inaccurate and cannot provide employers with use useful
information. Certainly, the validity of polygraphs has been
widely debated during the last two decades. The scientific
community itself is divided. One camp, led by Prof. David C.
Raskin of the University of Utah published, in 1978, a study
assessing polygraphs to be 90 percent accurate, when properly
conducted and evaluated. The opposing camp, led by Dr. D. T.
Lykkon of the University of Minnesota, claims that the test is
much less accurate and that it works to screen out the most
honest, most conscientious employees. As the dissenters of the
House Committee on Education and Labor indicated in their report
on H.R. 1524, the Employee Polygraph Protection Act of 1986,
which passed the House during the last Congress, 'Field studies
are difficult to validate, and 'laboratory' studies cannot
exactly replicate polygraph usage. The Office of Technology
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Assessment (OTA) in a 2.913 report concluded that 'no overall
measure or single, simple judgment of polygraph testing validity
can be established based on available scientific evidence.'"
What is essential to recognise here is, not that one side or the
other has satisfied the burden of persuasion, but that the
current debate is an ongoing and vigorous one.
Apart from the debate in the scientific community, a number
of employers obviously believe that polygraphs are useful devices
for aiding them in making responsible decisions about existing or
prospective employees. According to last Congress' Rouse
Committee Report on N.R. 1524, more than two million polygraph
tests are administered in the private sector each year, triple
the number given ten years ago. From an economic perspective, it
seems highly unreasonable to believe that employers would incur
the cost of $50460 per test and risk generating some bad will
among valuable or potentially valuable employees, and perhaps
losing them to competitors, if those employers did not believe
the tests provided useful information. Moreover, it must be
remembered that the alternatives to polygraph tests -- for
example, background checks and personal interviews in the
preemployment screening context --, may be far more highly
subjective and may intrude upon privacy interests in at least as
substantial a way. The value of polygraphs, therefore, should be
analyzed not by some unattainable, ideal standard, but with
reference to existing, real-world investigative alternatives.
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Again, these are considerations as to which different citisenries
in different states may reasonably come to different conclusions.
H.R. 1212 itself takes an inconsistent stand on whither
polygraph tests are sufficiently valid to be useful. While the
bill would ban the use of polygraphs in the private sector, in
large part because of the inaccuracies of the test, it explicitly
recognises the usefulness of polygraphs for the government by
continuing to allow polygraph testing of all governmental
employees. Certainly if the machines are reliable indicators of
truth or falsity in the public sector they are equally as
reliable in the private sector.
Apparently a majority of the Members of the 99th Congress'
House of Representatives also believed that polygraphs are useful
in a variety of private sector contexts. When H.R. 1524 went to
the floor on March 12 of last year, it contained a single
exemption for companies involved in the storage, distribution, or
sale of controlled substances. One representative after another
offered amendments exempting various industries from the bill's
blanket prohibition. The bill passed the House containing not
only the original exemption, but also exemptions for workers in
nursing homes, and children's day care centers, security
personnel, and public utility employees. From these exemptions
it is clear that the vary representatives who have voted to bar
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the use of polygraphs seemed to recognize their usefulness and
credibility in certain contexts.
More than that, however, those exemptions again highlight
the arbitrary nature of decisions on which occupations to exempt.
If polygraphs provide benefits to employers in the armored car
industry, it is difficult, if not impossible, to understand why
banks Where 84% of losses are attributed to employee theft) or
the legal gaming industry (where large sums of money change hands
and policing of employees is extremely difficult) are not
entitled to the same benefits. Likewise, if polygraphs are
useful to protect employers and the public from prospective
employees seeking sensitive positions involving the distribution
or sale of controlled substances, they would seem to be equally
useful for screening prospective employees for other sensitive
positions, such as airport security personnel and truck drivers
transporting munitions and other hazardous materials.
What all of this indicates is that polygraph regulation is a
complex and emotional issue which poses a number of questions
with no definitive answers. It is an issue which requires
careful balancing of the interests of consumers, employees, and
employers. Possible responses range from relying on the free
market, to licensing polygraph examiners, to banning completely
the use of polygraphs. While all sorts of variations on these
approaches are possible, which a precise approach is best for any
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given state should be left to the citizens of that state. We see
no reason to forestall the vigorous debate on the issue
continuing to take place within the states.
In fact, those states that have regulated in this field have
adopted widely varying approaches. Nineteen states and the
District of Columbia regulate employers' use of the polygraph;
three states regulate employers' use of other 'honesty testing
devices.' Some of these states completely ban the use of
polygraphs by private employers; others prohibit employers from
requiring employees to take the tests, but allow them to be
administered to employees who volunteer to take thew still
others exempt certain occupations -- ranging from police and
firefighters to jewelers to pharmaceutical companies -- from the
ban. Six of these states additionally regulate polygraph
examiners. Of those states that do not directly regulate
employers' use of polygraphs, thirteen regulate polygraph
examiners -- some requiring licensing, some limiting the types of
questions that can be asked to employees. This diversity, with
the alternatives it provides to citizens -- some of whom are
vigorously opposed to polygraph use and some who are its adamant
supporters -- and the ability to experiment with different
approaches it allows, is one of the primary reasons the Framers
of our Constitution created a two-tiered system of government,
with much of the regulatory authority remaining with the states.
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I would like to conclude my remarks with a quote from
President Reagan. In an address to the National Conference of
State Legislatures on July 30, 19$l, he states:
Today federalism is one check that is out of
balance as the diversity of the states has
given way to the uniformity of Washington.
And our task is to restore the constitutional
symmetry between the central government and
the states and to reestablish the freedom and
variety of federalism. In the process, we'll
return the citizen to his rightful place in
the scheme of our democracy and that place is
close to his government. We must never
forget it. It is not the federal government
or the states who retain the power -- the
people retain the power. And I hope that
you'll join me in strengthening the fabric of
federalism. If the federal government is
more responsive to the states, the states
will be mor? responsive to the people . .
For the reasons so eloquently articulated by President Reagan, I
urge that this bill not be enacted.
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I
mlim"RE" H. R. 1212
18? SUWON
To prevent the denial of employment opportunities by prohibiting the use of lie
detectors by employers involved In or affecting interstate commerce.
IN THE ROUSE OF REPRESENTATIVES
FUSUART 24, 1987
Mr. WILLIAMS (for himself, Mr. HAWKINS, Mr. JITTOIDS, Mi. FORD of Michi-
gan, Mr. OUT, Mr. Buocit, Mr. Muslim, Mr. MIAMI, Mr. MARTINI',
Mr. ()WINS of New York, Kr. Botmsrus, Mr. MYR, of Illinois, Mr. Psi-
KING, Mr. Dwain', Mr. PINNY, Mr. ATKIN., Mr. Timm, Mr. RIMY,
Mr. BROOKS, Mr. McKnitizT, Mr. RODINO, Mr. COuRTzR, Mr. EAST1N-
min, Mr. LIVIN of Michigan, Mr. HOWARD, Mr. EDWARDS of California,
Ms. Gazata, Mr. Comas, Mr. Bzustatt, Mr. LOWRY of Washington, Mr.
LIZARD, Mr. Banyan, Mr. OBEISTAR, Mr. IPAUNTROT, Mr. STASI/MRS,
Mr. ROBINION, Mr. KANJORSKI, Mt. FLORIO, Mr. MAMMY, MTS. BliNT-
LIT, Mr. JONIS of North Carolina, Mr. ANDRIWS, Mr. MIASMIC, Mr.
Somas, Mr. GRPHA1DT, Mr. Evian, Mr. Liam of Iowa, Mn. Borns,
Mr. Simms, Mr. CONTI, Mr. GLICKMAN, Mr. BOWIlii, Mr. HIRTIL, Mr.
RAMALL, Mr. DUBBIN, Mr. AKAKA, Mr. VISCLOSXT, Mr. GATD011, Mr.
. RICHARDSON, Mr. RANORL, Mr. TOWNS, Mr. BOIMIJIRT, Mr. Fut?, Mr.
&DOR, Mr. ACK:ORMAN, Mr. WHILAT, Mr. DILLUMS, Mr. PRIOHAN, Mrs.
COLLINS, Mr. FRANK, Mr. HOLT'S, Mr. pixOti, Mr. DAVIS of Michigan,.
Mrs. JOHNSON of Connecticut, Mr. CARR, Mr. SULTON, Mr. CROCKICTT,
Mr. MORRIsON of Connecticut, Mr. BROWN of California, Mr. 'ham of
Iowa, Mr. Sr/AGM, Mr. STORRS, Mr. GRAY Of Moil, Mr. Bosco, Mr.
WALORRN, Mr. 01.71HINSON, Mr. DOWNsLLT, Mr. UT= of California, Mr.
GONRALRS, Mr. TRATICANT, Mr. STARK, Mr. WOLrli, Mr. GRAY of Penn-
sylvania, Mr. NW., Mr. STUDDS, Mr. SABO, Mr. Tosses, Mr. OLEN, Ms.
Kamm, Mr. Limn, Mr. Cisstmt, Mr. fhionata, Mr. Boma. of Midi-
gen, Mr. Wtu, Mr. OVAIINI, Ms. 8x0ent, Mr. EUSTAMANTR, Mrs.
SCIIROZDZI, Mr. AVCOIN, Mi. SWUM, Mr. RINALDO, Mr. VIVITO, Mr.
MANTON, Mr. KosTmATRR, Miss SCHNRIDIR, Mr. BoNzia, Mr. DTsoN,
Mr. IIINETA, Mr. HAMILTON, Mr. McDann, Mr. FouLINTTA, Mr. DORGAN
of North Dakota, Mr. NIZLOON of Utah, Mr. ASPIN, Mr. ST ONIMAIN, and
Mr. BOLAND) introduced the following bill; which was referred to the Com-
mittee on Education and Labor
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A BILL
To prevent the denial of employment opportunities by prohibit-
ing the use of lie detectors by employer. involved in or
affecting interstate commerce.
1 Be it enacted by the Senate and Howe of Representa-
2 tiou of the United States of America in Congress assembled,
8 SECTION 1. SHORT rrni.
4 This Act may be cited u the "Employee Polygraph
5 Protection Act".
6 SEC. 1. PROHIBMONS ON LIE DETECTOR USE.
7 It shall be unlawful for any employer engaged in com-
merce or hi the production of goods for commerce-
9 (1) directly or indirectly, to require, request, sug-
10 gest, or cause any employee or prospective employee
11 to fake or submit to any lie detector test;
12 (2) to use, accept, refer to, or inquire concerning
18 the results of any lie detector test of any employee or
14 prospective employee;
15 (8) to discharge, dismiss, discipline in any manner,
16 or deny employment or promotion to, co threaten to
17 take any such action against-
18 (A) any employee or prospective employee
19 who refuses, declines, or fails to take or submit to
20 any lie detector test; or
SUB III HI
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1 (B) any employee or prospective employee on
2 the basis of the results of any lie detector test;
8 or
4 (4) to discharge or in any manner discriminate
5 against an employee or prospective employee
6 because-
7 (A) such employee or prospective employee
has filed any complaint or instituted or caused to
9 be instituted any proceeding under or related W
10 this Act;
11 (B) such employee or prospective employee
12 has testified or is about to testify in any such pro-
18 ceeding; or
14 (0) of the exercise by such employee, on
15 behalf of himself or others, of any right afforded
16 by this Act.
17 SEC. 3. NOTICE OF PROTECTION.
18 The Secretary of Labor shall prepare, have printed, and
19 distribute a notice that employers are prohibited by this Act
20 from using a lie detector test on any employee or prospective
21 employee. Upon receipt by the employer, such notice shall be
22 posted at all times in conspicuous places upon the premises of
23 every employer engaged in commerce or in the production of
24 goods for commerce.
OH* ISIS III
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I SEC. 4. AUTHORITY OF THE SICCREITARY OF LABOR.
2 (a) 1w GINEBAL.?The Secretary of Labor shall-
8 (1) issue such rules and regulations as may be
4 necessary or appropriate for carrying out this Act;
5 (2) cooperate with regional, State, local, and other
6 agencies, and cooperate with and furnish technical u-
7 sistance to employers, labor organizations, and employ-
8 ment agencies to aid in effectuating the purposes of
9 this Act; and
10 (8) make investigations and Inspections and re-
11 quire the keeping of records necessary, or appropriate
12 for the administration of this Act.
18 (b) SUBMINA AUTHORITY?For the purpose Of any
14 hearing or investigation under this Act, the Secretary shall
15 have the authority contained in sections 9 and 10 of the Fed-
16 oral Trade Commission Act (15 U.S.O. 49, 50).
17 SEC. 5. ENFORCEMENT PROVISIONS.
18 (a) Own, PENALnes.?(1) Subject to paragraph (2),
19 whoever violates this Act may be assessed a civil penalty of
20 not more than $10,000.
21 (2) In determining the amount of any penalty under
22 paragraph (1), the Secretary shall take into account the pre-
28 vious record of the person in terms of compliance with this
24 Act and the gravity of the violation.
25 (8) Any civil penalty assessed under this subsection shall
26 be collected in the same manner u is required by subsections
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1 (b) through (e) of section 508 of the Migrant and Seuonal
2 Agricultural Worker Protection Act (29 U.S.O. 1888) with
3 respect to civil penalties assessed under subsection (a) of such
4 section.
(b) INJUNCTIVE ACTIONS BY THE SECIIIITARY.?The
6 Secretary may bring an action to restrain violations of this
7 Act. The district courts of the United States shall have juris-
8 diction, for cause shown, to issue temporary or permanent
9 restraining orders and injunctions to require compliant). with
10 this Act.
11 (c) PRIVATE CIVIL AOTION8.?(1) An employer who
12 violates the provisions of this Act shall be liable to the em-
18 ployee or prospective employee affected by such violation. An
14 employer who violates the provisions of this Act shall be
16 liable for such legal or equitable relief as may be appropriate,
16 including (without limitation) employment, reinstatement,
17 promotion, the payment of wages loot, and an additional ?
18 amount as consequential damages.
19 (2) An action to recover the liability prescribed in para.
20 graph (1) may be maintained against the employer in any
21 Federal or State court of competent jurisdiction by any one
22 or more employees for or in behalf of himself or themselves
28 and other employees similarly situated.
*int Isis DI
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1 (3) The court shall award to a prevailing plaintiff in any
2 action under this subsection the reasonable costs of such
8 action, including attorneys' fees.
4 SEC. I. NO APPLICATION TO GOVERNMENTAL EMPLOYERS,
5 The provisions of this Act shall not apply with respect
8 to the United States Government, a State or local gov-
7 ernment, or any political subdivision of a State or local
8 government.
9 SEC. T. DEFINITIONS.
10 As used in this Act--
11 (1) the term "lie detector test" include. any ex-
12 amination involving the use of any polygraph, deoepto-
13 graph, voice stress analyser, psychological stress eve).
14 utter, or any other similar device (whether mechanical,
15 electrical, or chemical) which is used, or the results of
16 which are used, for the purpose of detecting deception
17 or verifying the truth of statements;
18 ? (2) the term "employer" includes any person
19 acting directly or indirectly in the interest of an em.
20 ployer in relation to an employee or prispective em-
21 ploys.; and
22 (8) the term "commerce" has the meanhig provid-
23 ed by section 8(b) of the Fair Labor Standards Act of
24 1938 (29 U.S.C. 203(b)).
?HR III! III
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1 SICC. S. Imam DATL
2 This Act shall take effect 0 months after the date of its
8 enactment.
0
siliR Isis III
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