PENDING PRIVATE SECTOR POLYGRAPH LEGISLATION

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP90B01390R000400470004-1
• Release Decision: RIPPUB
• Original Classification: K
• Document Page Count: 52
• Document Creation Date: December 22, 2016
• Document Release Date: March 2, 2011
• Sequence Number: 4
• Publication Date: February 28, 1986
• Content Type: MEMO

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466~. WAL
Office of Legislative Liaison
Routing Slip
ACTION
INFO
1. D/OLL
2. DD/OLL
3. Admin Officer
4. Liaison
5. Legislation
6. Ch/Liaison
7. DCh/Liaison
8.
9.
10.
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LOUIS STOKES, OHIO
DAVE MCCURDY. OKLAHOMA
ANTHONY C. BEILENSON. CALIFORNIA
ROBERT W. KASTENMEIER, WISCONSIN
DAN DANIEL, VIRGINIA
ROBERT A. ROE, NEW JERSEY
GEORGE E. BROWN, JR.. CALIFORNIA
MATTHEW F. McHUGH. NEW YORK
BERNARD J. DWYER. NEW JERSEY
BOB STUMP, ARIZONA
ANDY IRELAND, FLORIDA
HENRY J. HYDE, ILLINOIS
DICK CHENEY, WYOMING
BOB LIVINGSTON. LOUISIANA
BOB MCEWEN. OHIO
THOMAS K. LATIMER. STAFF DIRECTOR
MICHAEL J. O'NEIL, CHIEF COUNSEL
STEVEN K. BERRY, ASSOCIATE COUNSEL
U.S. HOUSE OF REPRESENTATIVES
PERMANENT SELECT COMMITTEE
ON INTELLIGENCE
February 28, 1986
Deputy Director
Office of Congressional Affairs
Central Intelligence Agency
Emil Moschella
Office of Congressional and Public Affairs
Federal Bureau of Investigation
Office of Legislative Affairs
National Security Agency
FROM: David S.'Addington
Counsel, Subcommittee on Legislation
ROOM H-408, U.S. CAPITOL
[phone]
SUBJECT: Pending Private Sector Polygraph Legislation
1. Background. As I discussed with you on the telephone today,
Congressman C. W. Bill Young's office has asked me to check informally and
promptly with each of your agencies on legislation aimed at private sector
polygraph usage to be considered shortly by the House of Representatives. As
you know, Congressman Young has been one of the strongest supporters in the
House of ensuring the availability of polygraph examinations for personnel
security screening to protect sensitive national security information.
2. Expected Floor Action. The House will soon consider H.R. 1524, as
reported H. Rept. 99-416) under the rule approved by the House on December
12, 1985 (H. Res. 337). As the floor debate preceding adoption of the rule
made clear, Congressman Young intends to offer H.R. 3916 as an amendment in
the nature of a substitute to H.R. 1524. When he offers H.R. 3916 as a
substitute to H.R. 1524, he would like to include whatever amendments to H.R.
3916 may be necessary to ensure that its enactment would have no adverse
impact on federal agency polygraph programs.
3. Potential Concerns with H.R. 3916. Section 4 of H.R. 3916 provides
that:
"No employer may take any action affecting the employment status of
an employee or prospective employee, if such action is based on the
results of a polygraph examination of such employee or prospective
employee that has not been administered in accordance with sections 5 and
6 of this Act."
STAT
STAT
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The drafters of H.R. 3916 clearly intended to regulate only private sector
polygraph usage, as evidenced by the use in Section 2(2) of the bill of the
National Labor Relations Act definition of "employer," which excludes the
United States. However, because the provisions of section 5 (relating to the
rights of polygraph examinees), section 6 (relating to minimum standards for
polygraph examinations), section 8 (regarding certification of polygraph
examiners) and section 9 (regarding disclosure of polygraph information)
establish requirements and prohibitions not qualified by the term "employer,"
concern has arisen that Sections 5, 6, 8, and 9 of H.R. 3916 could be
construed to apply to the use of polygraphs by the United States (which, of
course, includes your agencies). moreover, concern has been expressed that the
bill could have an adverse impact on industrial personnel security polygraph
programs under which key employees of private sector companies under contract
to U.S. intelligence agencies must undergo polygraph examinations as a
condition of access to sensitive classified information.
4. Request for Informal Response by March 7th. Attached is a page of
draft amendments to H.R. 3916 dated February 25, 1986 under consideration by
Congressman Young's staff to alleviate any possible federal agency concerns,
especially national security concerns, with H.R. 3916. Please have the
appropriate member of your staff telephone me (225-7310) by Friday, March 7th
with your informal thoughts on the following:
(1) Would the attached proposed amendments to be incorporated in
H.R. 3916 before it is offered as a substitute to H.R. 1524 ensure that
H.R. 3916, if it were to become law, would not have an adverse effect on
your agency?
(2) What would be the likely response of your agency if Mr. Young
were to request your agency's views on H.R. 3916 with the proposed
amendments, as a substitute to H.R. 1524? (Obviously the hope is that your
agency head would respond that he supported the revised H.R. 3916 package,
or at least that he had no objection.)
The emphasis on this request is informality and speed. We understand that
your response can only be informal guidance. Thank you for your help.
Enclosures: H.R. 1524 as reported
H. Rept. 99-416
H. Res. 337
Floor Action on H.Res. 337
H.R. 3916
Amendments to H.R. 3916 (February 25, 1985)
cc: Mr. Harry Glenn
Office of the Honorable C.W. Bill Young
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February 25, 1986
Amendments to H.R. 3916 as introduced
Amendment No. 1-On page 6, after line 7, insert the following new
subsection at the end of Section 5 (relating to rights of polygraph examinee):
"(d) Nothing in this section shall be construed to apply with respect
to a polygraph examination conducted by, or at the direction of, the
United States in accordance with otherwise applicable Federal law."
Amendment No. 2--On page 9, after line 16, insert the following new
subsection at the end of Section 6 (relating to minimum standards for
polygraph examinations):
"(j) Nothing in this section shall be construed to apply to a
polygraph examiner employed by the United States, or conducting a
polygraph examination at the direction of the United States in accordance
with otherwise applicable Federal law."
Amendment No. 3--On page 11, after line 25, insert the following new
subsection in Section 8 (relating to certification of polygraph examiners):
"(d) Nothing in this section shall be construed to apply to a
polygraph examiner employed by the United States, or conducting a
polygraph examination at the direction of the United States in accordance
with otherwise applicable Federal law."
Amendment No. 4--On page 12, after line 14, insert the following new
subsection in Section 12 (relating to disclosure of information):
"(d) Nothing in this section prohibits the disclosure of information
obtained during a polygraph examination to a federal law enforcement
agency or intelligence agency in accordance with otherwise applicable
Federal law or to prohibit subsequent redisclosure by such an agency in
accordance with such law."
Explanation for Amendments
The use of the National Labor Relations Act definition of "employer" in
Section 2(2)(A) of H.R. 3916, which excludes the United States, and the
findings set forth in Section 3 of the bill, make clear that the bill is
intended to regulate private sector use of polygraphs for commercial purposes,
and is not intended to regulate use of polygraphs by the United States.
However, several provisions of the bill would have an unintended adverse
impact on the use of polygraphs by the United States for national security and
law enforcement purposes as currently permitted by federal law.
The amendments ensure that H.R. 3916 will not restrict currently
authorized national security and law enforcement uses of the polygraph,
including uses in industrial security programs conducted at the direction of
the United States to protect national. security projects. The amendments also
ensure that H.R. 3916 will not affect existing controls on the qualifications
of federal. agency polygraph examiners and on the use by federal agencies of
polygraph-derived information.
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99TH CONGRESS
18T SESSION
Union Calendar No. 251
. R. 1524
[Report No. 99-416]
To prevent the denial of employment opportunities by prohibiting the use of he
detectors by employers involved in or affecting interstate commerce.
IN THE HOUSE OF REPRESENTATIVES
MARCH 7, 1985
Mr. WILLIAMS (for himself, Mr. MARTINEZ, Mr. FORD of Michigan, Mr. BEMP,
Mr. McKINNEY, Mr. HAYES, Mr. OWENS, Mr. DYMALLY, Mr. BoucHER,
Mr. MURPHY, Mr. TAUKE, Mr. LOWRY of Washington, Mr. COURTER, and
Mr. EDWARDS of California) introduced the following bill; which was referred
to the Committee on Education and Labor
AUGUST 20, 1985
Additional sponsors: Mr. CLAY, Mr. DELLUMS, Mr. SAVAGE, Mr. ATKINS, Mr.
BIAGGI, Mr. SMITH of Florida, Mr. GARCIA, Mr. BERMAN, Mrs. BOXER,
Mr. STOKES, Mr. RICHARDSON, Mr. WILSON, Mr. KILDEE, Mr. ACKER-
MAN, Mr. HERTEL of Michigan, Mr. HAWKINS, Mr. MATSUI, Mr. DOWNEY
of New York, Mr. VENTO, Mr. TOWNS, Mr. CONYERS, Mr. MORRISON of
Connecticut, Mr. MRAZEK, Mr. SEIBERLING, Mr. EVANS of Illinois, Mr.
STALLINGS, Mr. RAHALL, Mr. OBERSTAR, Mr. BROWN of California, Mrs.
SCHROEDER, Mr. FAZIO, Mr. EDWARDS of Oklahoma, Mr. SOLARZ, Mr.
BOLTER, Mr. NEAL, Mr. BASTENMEIER, Mr. BARNES, Mr. FOGLIETTA,
Mr. SIKORSKI, Mr. MITCHELL, Mr. GAYDOS, Mr. WIRTH, Mr. COELHO, Mr.
TORRES, Mr. FRANK, Mr. DASCHLE, Mr. FEIGHAN, Mr. BOEHLERT, Mr.
DORGAN of North Dakota, Mr. KOSTMAYER, Mr. GEPHARDT, Mrs. BURTON
of California, Mr. CARR, Mr. DYSON, Mr. LEHMAN of California, Mr. WISE,
Mr. CLINGER, Mr. GLICKMAN, Mr. MOODY, Mr. CROCKETT, Mr. BATES,
Mr. STUDDS, Mr. EDGAR, Mr. LUKEN, Mr. WOLPE, Mr. DWYER of New
Jersey, Ms. BAPTUR, Mr. GONZALEZ, Mrs. COLLINS, Mr. PEASE, Mr.
SMITH of Iowa, Mr. RODINO, Mr. OLIN, Mr. MOLLOHAN, Mr. A11 -KA, Mr.
ROBINSON, Mr. BONIOR of Michigan, Mr. SWIFT, Mr. MOAKLEY, Mr. ENG-
LISH, Mr. WHEAT, Mr. HOYER, Mr. WALGREN, Mr. YATES, Mr. MAV-
ROULES, Mr. LEVINE, of California, Mr. CARPER, Mr. NOWAK, Mr.
LELAND, Mr. SLATTERY, Mrs. SCHNEIDER, Mr. RINALDO, Mr. ROYBAL,
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Mr. ASPIN, Mr. SAXTON, Mr. FAUNTROY, Mr. HOWARD, MS. MIKULSKI,
Mr. WATKINS, Mr. MARKEY, Mr. WEAVER, Mr. RANGEL, Mr. LUNDINE,
Mr. STARK, Mr. BEDELL, Mr. BANJORSKI, Mr. HAMILTON, Mr. PERKINS,
Mr. RIDGE, Mr. ]FLORIO, Mr. BORSKI, Mr. ST GERMAIN, Mr. SABO, Mr.
DONNELLY, Mrs. JOHNSON, Mr. WEISS, Mr. DIXON, Mr. PENNY, Mr.
MANTON, Mr. BOLAND, Mrs. BENTLEY, Mr. STAGGERS, Mr. SYNAR, Mr.
SCHEUER, Mr. TORRICELLI, Mr. SCHUMER, Mrs. HOLT, MT. MINETA, Mr.
AUCOIN, Ms. SNOWE, Mr. TRAFICANT, Mr. NIELSON of Utah, Mr. GUAR-
INI, Mr. EARLY, Mr. TRAXLER, Mr. GRAY of Pennsylvania, Ms. OAKAR,
and Mr. ROE
DECEMBER 5, 1985
Additional sponsors: Mr. LEACH of Iowa, Mr. VISCLOSKY, Mr. GALLO, Mr.
DURBIN, Mr. LEVIN of Michigan, Mr. LIGHTFOOT, Mr. BROOKS, Mr. GRAY
of Illinois, Mr. Bosco, Mr. CONTE, Mr. BUSTAMANTE, Mr. GEJDENSON,
Mrs. KENNELLY, and Mr. OBEY
DECEMBER 5, 1985
Reported with an amendment, committed to the Committee of the Whole House
on the State of the Union, and ordered to be printed
[Strike out all after the enacting clause and insert the part printed in italic]
[For text of introduced bill, see copy of bill as introduced on March 7, 1985]
A BILL
To prevent the denial of employment opportunities by prohibit-
ing the use of lie detectors by employers involved in or
affecting interstate commerce.
Be it enacted by the Senate and House of Representa-
tives of the United States of America in Congress assembled
SECTION 1. SHORT TITLE.
This Act may be cited as the "Employee Polygraph
Protection Act of 1985".
SEC. 2. PROHIBITIONS ON LIE DETECTOR USE.
It shall be unlawful for any employer engaged in com-
merce or in the production of goods for commerce-
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1 (1) directly or indirectly, to require, request, sug-
2 gest, or cause any employee or prospective employee to
3 take or submit to any lie detector test;
4 (2) to use, accept, refer to, or inquire concerning
5 the results of any lie detector test of any employee or
6 prospective employee;
7 (3) to discharge, dismiss, discipline in any
8 manner, or deny employment or promotion to, or
9 threaten to take any such action against-
10 (A) any employee or prospective employee
11 who refuses, declines, or fails to take or submit to
12 any lie detector test; or
13 (B) any employee or prospective employee on
14 the bail of the results of any lie detector test; or
15 (4) to discharge or in any manner discriminate
16 against an employee or prospective employee because-
17 (A) such employee or prospective employee
18 has filed any complaint or instituted or caused to
19 be instituted any proceeding under or related to
20 this Act;
21 (B) such employee or prospective employee
22 has testified or is about to testify in any such pro-
23 ceeding; or
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1 (C) of the exercise by such employee, on
2 behalf of himself or others, of any right afforded
3 by this Act.
4 SEC. 3. NOTICE OF PROTECTION.
5 The Secretary of Labor shall prepare, have printed, and
6 distribute a notice that employers are prohibited by this Act
7 from using a lie detector test on any employee or prospective
8 employee. Upon receipt by the employer, such notice shall be
9 posted at all times in conspicuous places upon the premises of
10 every employer engaged in commerce or in the production of
11 goods for commerce.
12 SEC. 4. AUTHORITY OF THE SECRETARY OF LABOR.
13 (a) IN GENERAL.-The Secretary of Labor shall-
14 (1) issue such rules and regulations as may be
15 necessary or appropriate for carrying out this Act;
16 (2) cooperate with regional, State, local, and other
17 agencies, and cooperate with and furnish technical as-
18 sistance to employers, labor organizations, and employ-
19 ment agencies to aid in effectuating the purposes of
20 this Act; and
21 (3) make investigations and inspections and re-
22 quire the keeping of records necessary or appropriate
23 for the administration of this Act.
24 (b) S UBPENA AUTHORITY.-For the purpose of any
25 hearing or investigation under this Act, the Secretary shall
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1 have the authority contained in sections 9 and 10 of the Fed-
2 eral Trade Commission Act (15 U. S. C. 49, 50).
3 SEC. 5. ENFORCEMENT PROVISIONS.
4 (a) CIVIL PENALTIES.-(1) Subject to paragraph (2),
5 whoever violates this Act may be assessed a civil penalty of
6 not more than $10,000.
7 (2) In determining the amount of any penalty under
8 paragraph (1), the Secretary shall take into account the pre-
9 vious record of the person in terms of compliance with this
10 Act and the gravity of the violation.
11 (3) Any civil penalty assessed under this subsection
12 shall be collected in the same manner as is required by sub-
13 sections (b) through (e) of section 503 of the Migrant and
14 Seasonal Agricultural Worker Protection Act (29 U. S. C.
15 1853) with respect to civil penalties assessed under subsec-
16 tion (a) of such section.
17 (b) INJUNCTIVE ACTIONS BY THE SECRETARY.-The
18 Secretary may bring an action to restrain violations of this
19 Act. The district courts of the United States shall have juris-
20 diction, for cause shown, to issue temporary or permanent
21 restraining orders and injunctions to require compliance with
22 this Act.
23 (c) PRIVATE CIVIL ACTIONS.-(1) An employer who
24 violates the provisions of this Act shall be liable to the em-
25 ployee or prospective employee affected by such violation. An
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1 employer who violates the provisions of this Act shall be
2 liable for such legal or equitable relief as may be appropriate,
3 including without limitation employment, reinstatement, pro-
4 motion, and the payment of wages lost and an additional
5 amount as liquidated damages.
6 (2) An action to recover the liability prescribed in para-
7 graph (1) may be maintained against the employer in any
8 Federal or State court of competent jurisdiction by any one
9 or more employees for or in behalf of himself or themselves
10 and other employees similarly situated.
11 (3) The court shall award to a prevailing plaintiff in
12 any action under this subsection the reasonable costs of such
13 action, including attorneys' fees.
14 SEC. 6. EXEMPTIONS.
15 (a) No APPLICATION TO GOVERNMENTAL EMPLOY
16 ERS.-The provisions of this Act shall not apply with respect
17 to the United States Government, a State or local govern-
18 ment, or any political subdivision of a State or local
19 government.
20 (b) COUNTERINTELLIGENCE PROGRAM EXEMP-
21 TION.-(1) Nothing in this Act shall be construed to prohibit
22 the administration, in the performance of any counterintelli-
23 gene function, of any lie detector test that is conducted pur-
24 suant to section 1221 of the Department of Defense Authori-
25 zation Act, 1986.
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1 (2) Nothing in this Act shall be construed to prohibit the
2 administration, in the performance of any intelligence or
3 counterintelligence function, of any lie detector test-
4 (A) to an individual assigned or detailed to the
5 Central Intelligence Agency or to any expert or con-
6 sultant under a contract with the Central Intelligence
7 Agency;
8 (B) to (i) an individual employed by or assigned
9 or detailed to the National Security Agency, (ii) an
10 expert or consultant under contract to the National Se-
11 curity Agency, (iii) an employee of a contractor of the
12 National Security Agency, or (iv) an individual apply-
13 ing for a position in the National Security Agency; or
14 (C) to an individual assigned to a space where
15 sensitive cryptologic information is produced, proc-
16 essed, or stored for the Central Intelligence Agency or
17 the National Security Agency.
18 (c) EXEMPTION FOR FBI CONTRACTORS.-Nothing
19 in this Act shall be construed to prohibit the administration,
20 in the performance of any counterintelligence function, of
21 any lie detector test to an employee of a contractor of the
22 Federal Bureau of Investigation of the Department of Justice
23 who is engaged in the performance of any work under the
24 contract with such Bureau.
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1 (d) EXEMPTION FOR DRUG THEFT OR DIVERSION
2 INVESTIGATIONS.-This Act shall not prohibit the use of a
3 lie detector test on current employees by an employer investi-
4 gating a reported theft or diversion of a controlled substance
5 listed in schedule I, II, III, or IV pursuant to section 202 of
6 the Controlled Substances Act (21 U. S. C. 812) to the extent
7 that-
8 (1) such use is consistent with-
9 (A) applicable State and local law, and
10 (B) any negotiated collective bargaining
11 agreement,
12 that explicitly or implicitly limits or prohibits the use
13 of lie detector tests on such employees; and
14 (2) the test is administered only to employees with
15 direct access to such controlled substances.
16 SEC. 7. DEFINITIONS.
17 As used in this Act-
18 (1) The term "lie detector test" includes any ex-
19 amination involving the use of any polygraph, decepto-
20 graph, voice stress analyzer, psychological stress eval-
21 uator, or any other similar device (whether mechanical,
22 electrical, or chemical) which is used, or the results of
23 which are used, for the purpose of detecting deception
24 or verifying the truth of statements.
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1 (2) The term "employer" includes any person
2 acting directly or indirectly in the interest of an
3 employer in relation to an employee or prospective
4 employee.
5 (3) The term "commerce" has the meaning pro-
6 vided by section 3(b) of the Fair Labor Standards Act
7 (29 U.S.C. 203(b)).
8 SEC. 8. EFFECTIVE DATE.
9 The provisions of this Act shall take effect on the date of
10 enactment, except for section 3, which shall take effect six
11 months after the date of enactment of this Act.
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w
r
W
Ir
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99TH CONGRESS REPORT
1st Session } HOUSE OF REPRESENTATIVES { 99-416
DECEMBER 5, 1985.-Committed to the Committee of the Whole House on the State
of the Union and ordered to be printed
Mr. HAWKINS, from the Committee on Education and Labor,
submitted the following
REPORT
together with
DISSENTING AND SUPPLEMENTAL VIEWS
[To accompany H.R. 1524 which on March 7, 1985 was referred to the Committee on
Education and Labor]
[Including cost estimate of the Congressional Budget Office]
The Committee on Education and Labor, to whom was referred
the bill (H.R. 1524) to prevent the denial of employment opportuni-
ties by prohibiting the use of lie detectors by employers involved in
or affecting interstate commerce, having considered the same,
report favorably thereon an amendment in the nature of a substi-
tute and recommend that the bill as amended do pass.
The Committee amended the proposed legislation so as to allow
employers to polygraph an employee when it is used for certain na-
tional security functions.
The bill as amended would read as follows:
SECTION 1. SHORT TITLE.
This Act may be cited as the "Employee Polygraph Pro-
tection Act of 1985".
SEC. 2. PROHIBITIONS ON LIE DETECTOR USE.
It shall be unlawful for any employer engaged in com-
merce 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;
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(2) to use, accept, refer to, or inquire concerning the
results of any lie detector test of any employee or pro-
spective employee;
(3) to discharge, dismiss, discipline 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 or in any manner discriminate
against an employee or prospective employee be-
cause-
(A) such employee or prospective employee has
filed any complaint or instituted or caused to be
instituted any proceeding under or related to this
Act;
(B) such employee or prospective employee has
testified or is about to testify in any such proceed-
ing; or
(C) of the exercise by such employee, on behalf
of himself or others, of any right afforded by this
Act.
SEC. 3. NOTICE OF PROTECTION.
The Secretary of Labor shall prepare, have printed, and
distribute a notice that employers are prohibited by this
Act from using a lie detector test on any employee or pro-
spective employee. Upon receipt by the employer, such
notice shall be posted at all times in conspicuous places
upon the premises of every employer engaged in commerce
or in the production of goods for commerce.
SEC. 4. AUTHORITY OF THE SECRETARY OF LABOR.
(a) IN GENERAL.-The Secretary of Labor shall-
(1) issue such rules and regulations as may be neces-
sary or appropriate for carrying out this Act;
(2) cooperate with regional, State, local, and other
agencies, and cooperate with and furnish techical as-
sistance to employers, labor organizations, and em-
ployment agencies to aid in effectuating the purposes
of this Act; and
(3) make investigations and inspections and require
the keeping of records necessary or appropriate for the
administration of this Act.
(b) SUBPENA AUTI;ORITy.-For the purpose of any hear-
ing or investigation under this Act, the Secretary shall
have the authority contained in sections 9 and 10 of the
Federal Trade Commission Act (15 U.S.C. 49, 50).
SEC. 5. ENFORCEMENT PROVISIONS.
(a) Cwn. PENALTIES.-(1) Subject to paragraph (2), whoev-
er violates this Act may be assessed a civil penalty of not
more than $10,000.
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(2) 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 Act and the gravity of the violation.
(3) Any civil penalty assessed under this subsection shall
be collected in the same manner as is required by subsec-
tions (b) through (e) of section 503 of the Migrant and Sea-
sonal Agricultural Worker Protection Act (29 U.S.C. 1853)
with respect to civil penalties assessed under subsection (a)
of such section.
(b) INJUNCTIVE ACTIONS BY THE SECRETARY.-The Secre-
tary may bring an action to restrain violations of this Act.
The district courts of the United States shall have jurisdic-
tion, for cause shown, to issue temporary or permanent re-
straining orders and injunctions to require compliance
with this Act.
(C) PRIVATE CIVIL ACTIONS.-(1) An employer who vio-
lates the provisions of this Act shall be liable to the em-
ployee or prospective employee affected by such violation.
An employer who violates the provisions of this Act shall
be liable for such legal or equitable relief as may be appro-
priate, including without limitation employment, reinstate-
ment, promotion, and the payment of wages lost and an
additional amount as liquidated damages.
(2) An action to recover the liability prescribed in para-
graph (1) may be maintained against the employer in any
Federal or State court of competent jurisdiction by any
one or more employees for or in behalf of himself or them-
selves and other employees similarly situated.
(3) The court shall award to a prevailing plaintiff in any
action under this subsection the reasonable costs of such
action, including attorneys' fees.
SEC. 6. EXEMPTIONS.
(a) No APPLICATION TO GOVERNMENTAL EMPLOYERS.-The
provisions of this Act shall not apply with respect to the
United States Government, a State or local government, or
any political subdivision of a State or local government.
(b) COUNTERINTELLIGENCE PROGRAM EXEMPTION.-(1)
Nothing in this Act shall be construed to prohibit the ad-
ministration, in the performance of any counterintelli-
gence function, of any lie detector test that is conducted
pursuant to section 1221 of the Department of Defense Au-
thorization Act, 1986.
(2) Nothing in this Act shall be construed to prohibit the
administration, in the performance of any intelligence or
counterintelligence function, of any lie detector test-
(A) to an individual assigned or detailed to the Cen-
tral Intelligence Agency or to any expert or consultant
under a contract with the Central Intelligence Agency;
(B) to (i) an individual employed by or assigned or
detailed to the National Security Agency, (ii) an
expert or consultant under contract to the National
Security Agency, (iii) an employee of a contractor of
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the National Security Agency, or (iv) an individual ap-
plying for a position in the National Security Agency;
or
(C) to an individual assigned to a space where sensi-
tive cryptologic information is produced, processed, or
stored for the Central Intelligence Agency or the Na-
tional Security Agency.
(c) EXEMPTION FOR FBI CoNTRAcToRS.-Nothing in this
Act shall be construed to prohibit the administration, 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 Jus-
tice who is engaged in the performance of any work under
the contract with such Bureau.
(d) EXEMPTION FOR DRUG THEFT OR DIVERSION INVFSTIGA-
TIONS.-This Act shall not prohibit the use of a lie detector
test on current employees by an employer investigating a
reported theft or diversion of a controlled substance listed
in schedule I, 11, III, or IV pursuant to section 202 of the
Controlled Substance Act (21 U.S.C. 812) to the extent
that-
(1) such use is consistent with-
(A) applicable State and local law, and
(B) any negotiated collective bargaining agree-
ment,
that explicitly or implicitly limits or prohibits the use
of lie detector tests on such employees; and
(2) the test is administered only to employees with
direct access to such controlled substances.
SEC. 7. DEFINITIONS.
As used in this Act-
(1) The term "lie detector test" includes any exami-
nation involving the use of any polygraph, decepto-
graph, voice stress analyzer, psychological stress eval-
uator, or any other similar device (whether mechani-
cal, electrical, or chemical) which is used, or the re-
sults of which are used, for the purpose of detecting
deception or verifying the truth of statements.
(2) 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) The term "commerce" has the meaning provided
by section 3(b) of the Fair Labor Standards Act (29
U.S.C. 203(b)).
SEC. 8. EFFECTIVE DATE.
The provisions of this Act shall take effect on the date of
enactment, except for section 3, which shall take effect six
months after the date of enactment of this Act.
INTRODUCTION AND BRIEF SUMMARY OF LEGISLATION
An estimated 98 percent of the more than two million polygraph
tests administered each year are in private industry. Approximate-
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ly three-quarters of the polygraph tests are administered in pre-em-
ployment testing while the other one-quarter are used for investi-
gations. However, these tests, which affect close to two million pri-
vate sector employees each year, are not reliable.
The theory of polygraphs and other lie detectors assumes that
there is a direct correlation between deception and physiological re-
sponses. However, this basic premise that there is a unique physio-
logical response characterizing a lie is inaccurate. In fact, a lie de-
tector does not register deception; it registers stress through physi-
ological responses-whether out of anxiety, fear, anger, or nervous-
ness.
H.R. 1524, the Employee Polygraph Protection Act of 1985, and
similar legislation have been introduced in the 99th Congress to ad-
dress this problem at the national level. Thirty-one states and the
District of Columbia have passed legislation affecting the use of lie
detectors in the workplace. However, these separate laws have not
proven effective. Employers can undermine state law by pressuring
current employees and potential employees into "volunteering" to
take a test even where the state forbids an employer from requir-
ing or requesting an examination. Where a state completely bans
the use of lie detectors in the workforce, employers may avoid the
law by "hiring" in a neighboring state which permits examinations
and then "transferring" the employee into the state where such
testing is prohibited.
H.R. 1524 would uniformly ban the use of these tests by most pri-
vate employers. This legislation would protect workers who are
wrongfully denied employment and whose careers are devastated
because of lie detector test inaccuracies and employer abuses.
Some employers who currently use lie detectors extensively testi-
fied on their preference for mandatory regulation of the examiners
rather than the elimination of the tests. They believe that lie de-
tector tests are their most cost effective and convenient tools for
employee screening to prevent employee theft. However, this ig-
nores the fact that lie detectors are unreliable in detecting truth as
well as Flossing over the fact that the use of lie detectors violates
workers rights. Examiners often question employees concerning
their sexual practices, home situations, finances, political and reli-
gious beliefs as well as other personal subjects.
The Employee Polygraph Protection Act of 1985, if enacted,
would protect workers from discrimination in employment by
eliminating the general use of lie detectors in the workplace.
LEGISLATIVE HISTORY AND COMMITTEE ACTION
H.R. 1524, the Employee Polygraph Protection Act of 1985, was
introduced on March 7, 1985 by Representative Pat Williams and
now includes more than 160 cosponsors from both parties.
The original legislation, which prohibits the use of lie detectors
by private sector employers involved in interstate commerce, was
referred to the Committee on Education and Labor. On April 1,
1985 the bill was referred to the Subcommittee on Employment Op-
portunities. The bill was also jointly referred to the Subcommittee
on Labor-Management Relations and the Subcommittee on Labor
Standards on August 27, 1985.
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Hearings were held on this and similar legislation by the Sub-
committee on Employment Opportunities on July 30, 1985 and Sep-
tember 18, 1985. Testimony was received from Representative
Stewart McKinney on July 30 and Representative Robert L. Living-
ston on September 18 and other witnesses representing private em-
ployers and employees. Since the 93rd Congress, four other hear-
ings have been held on this issue.
The Subcommittee on Employment Opportunities held an open
mark-up session on September 18 and unanimously accepted an
amendment in the nature of a substitute to H.R. 1524 offered by
Representative Pat Williams and Chairman Matthew Martinez.
The Subcommittee favorably reported the substitute bill, with
amendment, by unanimous voice vote to the full committee.
The Committee on Education and Labor met on October 23, 1985
to consider H.R. 1524 as amended. At that time the Committee ap-
proved a motion discharging the Subcommittee on Labor-Manage-
ment Relations and the Subcommittee on Labor Standards from
further consideration of H.R. 1524. The full committee, by voice
vote ordered the substitute bill, with amendment, to be favorably
reported to the House of Representatives.
Congress has been interested in the lie-detector test issue for
more than 20 years. For the past seven Congresses, 35 separate
bills have been introduced concerning the use of these devices. The
majority of this legislation has been introduced in the House. Four-
teen of the 35 bills supported regulation of the industry. The re-
maining 21 bills completely banned or partially banned the use of
the lie detectors in the private workforce.
In the 99th Congress, eight bills relating to lie detectors have
been introduced. Seven of these bills were introduced in the House
of Representatives. A bill has also been introduced in the Senate by
Chairman Orrin Hatch and the Ranking Minority Member, Sena-
tor Edward M. Kennedy and was referred to the Committee on
Labor and Human Resources. Five of the bills introduced ban the
use of lie detectors by most private sector employers, including the
Senate version; while the others regulate the industry.
NEED FOR LEGISLATION
The lie detector has become primarily an employment opportuni-
ties issue, with the vast majority of the tests now being adminis-
tered in the workforce.
More than 2 million lie detector tests are administered in the
private sector each year. This use is more than all of the examina-
tions in criminal cases and in the Government combined. The
growing number of lie detector tests, triple the number given ten
years ago, has raised the need for legislative review of the accuracy
of these devices, the instances of their abuse and the determination
of their effect on the private workforce.
Lie detector devices can include the Voice Stress Analyzer (VSA),
the Psychological Stress Evaluator (PSA), psychological examina-
tions and the polygraph.
Polygraphs have received the most attention in recent years and
are now the most widely used device by employers. Polygraph ma-
chines, consisting of pneumograph tubes placed around the chest
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and stomach, a cardio-cuff placed on the left arm and electrodes
placed on two fingers on the right hand, measure a subject's
changes in pulse, blood pressure and perspiration when responding
to a series of questions. The machine measures bodily functions
and the polygraph examiner renders a judgment of "truthful",
"untruthful' or "inconclusive" based on the responses and reac-
tions to questions.
The validity of this lie detector test has been the source of in-
creasing debate during the last two decades. Federal studies have
concluded that the test's inaccuracy and the violation of workers'
rights outweigh any positive results of lie detectors.
For more than 20 years the Congress has been interested in the
validity of these tests and every study done since 1983 for the
United States Congress has found that there is no scientific basis
for polygraphs as lie detectors.
In 1965 the Foreign Operations and Government Information
Subcommittee of the House Committee on Government Operations
stated in a lie detector study, "There is no lie detector; neither ma-
chine nor human. People have been deceived by a myth that a
metal box in the hands of an investigator can detect truth or false-
hood." Two decades later the Office of Technical Assessment (OTA)
in another investigation for Congress, re-emphasized the 1965 find-
ings by stating, "There is little research or scientific evidence to es-
tablish polygraph test validity in screening situations, whether
they be pre-employment, pre-clearance, periodic or aperiodic,
random or 'dragnet'." Other studies have reaffirmed this position
including the Privacy Protection Study Commission, established by
Congress in 1974, which reported lie detector tests are "an unrea-
sonable invasion of privacy that should be summarily proscribed".
The Commission also recommended a federal law banning not only
the use of these tests in employment but also the banning of the
manufacturing and selling of the devices.
The primary factors affecting the validity of polygraphs are the
examiner, the subject and the setting. Examiners, many of whom
have less than six weeks of training after high school and do not
have advanced degrees, render a speculative interpretation on the
meaning of a complex graphic pattern reflecting oral, behavioral
and physiological responses. When an examiner administers and
scores a test, no one can determine what portion of the score is at-
tributed to the test display, the subject's behavior, or the examin-
er's bias. No one, regardless of experience, can determine from a
polygraph chart why a subject responded in a certain way, whether
out of guilt, fear, anger or an artificial reaction resulting from self-
inflicted pain. Testimony received by the subcommittee shows that
polygraph test results can be controlled by the examinee. By being
able to recognize relevant questions and by physiologically respond-
ing "correctly" to them, the test can be beaten. The test results re-
flect physiological stress only regardless of cause.
Employers, feeling they have an absolute right to screen prospec-
tive employees and monitor current ones, while believing in the re-
liability of lie detectors, have begun to use the polygraph test as an
easy and inexpensive way to find dishonest and potentially dishon-
est people. More than thirty percent of the Fortune 500 companies
and at least half of the retail trade firms reportedly rely on the
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tests as a replacement for or enhancement of reference checks.
These tests, used by employers in pre-employment and random on-
the-job screening, are not used just to detect deception, but are
often used to gain personal information about applicants' thoughts
and attitudes. Many opponents of the polygraph believe the money
employers use for this test could be more effectively spent for a
background check of a applicants' work history and sound invento-
ry control systems.
Employers believe that the polygraph is their major source of
protection against the estimated $40 billion lost in the private
sector each year due to theft. The National Institute of Justice esti-
mates that securities fraud, corporate kickbacks, embezzlement,
and insurance fraud cost employers three times the amount of loss
than employee pilferage. However, corporate management which is
usually responsible for these types of thefts are not subjected to lie
detector tests, while the hourly employees are most lely to be
subjected to testing. In fact, the vast majority of the corporate
management has never taken a lie detector test. Many opponents
of these tests believe that good personnel practices and sound in-
ventory control methods are much more effective in deterring
theft. In addition, the results of internal auditing procedures can
be used as evidence in court against an employee while the poly-
graph results may not.
The National Institute of Justice Study on Employee Theft shows
that employers who display respect for their employees' rights and
do not administer lie detector tests have a lower theft rate than
those who do administer the tests. Although employees are fre-
quently the most noticeable victim of lie detector tests, employers
may also be compromising their security by relying on machines
that do not work.
The growing use of these subjective tests by employers to ferret
out "dishonest" employees and "undesirable" applicants has
caused many people not only to focus on the accuracy of these
tests, but also the lawfulness of this practice. The legal concerns
over the lie detector tests include the violation of employees'
rights-to privacy, to the due process of law and to the equal pro-
tection of the laws of the United States. Many polygraphers have
only six weeks of training after high school. Many do not have ade-
quate training in labor relations; and these polygraphers are sub-
jecting workers to questions which frequently violate workers'
rights. Federal action is needed to protect workers' rights, while
also protecting employers from a growing number of lawsuits re-
garding He detector examinations, many of which are being won by
workers and applicants.
State statutes on lie detectors vary greatly. Some States have no
statutes on this subject. In States with prohibitions, enforcement is
ineffective. Where enforcement is adequate, employers often send
workers over State lines for testing. Some State laws prohibit an
employer from "requiring" a lie detector test; however, the law
does not protect employees from being coerced into "volunteering"
for the test. This loophole has allowed may employers to force
workers to "volunteer" for a lie detector. Workers have testified
that they dared not refuse to take a test because it would cost them
their job.
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Basic protection of rights afforded criminals by excluding lie de-
tector test results as evidence in our nation's courts is not similarly
afforded to the estimated two million workers forced to take these
tests each year. The courts have determined lie detector examina-
tions to be unreliable as evidence, yet employers continue to sub-
ject workers to them and many base employment decisions solely
on test results. H.R. 1524 recognizes that these rights and protec-
tions granted to accused individuals under investigation in the
criminal justice system should be extended to workers. The funda-
mental principle of the law that that everyone is considered inno-
cent until proven guilty is violated by lie detector tests, which are
tests given to prove one's innocence.
Lie detector tests have a built-in bias against truthful people.
The more honest workers are, the more likely they will fail the test
because of their heightened sensitivity to having their honesty
challenged, or from fear of suspicion being misdirected at them. Dr.
Leonard Saxe, principal author of the U.S. Congress, Office of
Technology Assessment (OTA) report, "The Scientific Validity of
Polygraph Tests", agrees that "because exceptionally honest and
intelligent individuals may be highly reactive to questions about
their truthfulness, such desirable employees will be misidentified
at higher rates that other less desirable employees." Those workers
who fail the test carry this stigma with them on their personnel
records which could ruin their future careers. Subcommittee testi-
mony demonstrated that being fired from a job after failing a poly-
graph examination, even after being proven innocent, has kept a
worker from reentering the job market.
In analyzing whether the use of lie detectors in the workplace
should continue, Congress must weigh the interests of both parties,
employers and employees alike. Where a less drastic and abusive
method to deter and detect theft exists, such as strong personnel
and inventory control methods, Congress must urge that those al-
ternatives be used. We must carefully scrutinize the validity as
well as the abuses of lie detector examinations. It is the judgment
of this Committee that H.R. 1524 is necessary to address the con-
cerns outlined above.
MAJOR PROVISIONS OF H.R. 1524
Denial of employment opportunities caused from the use of lie
detector devices by employers is a major concern of the Committee
on Education and Labor. The Committee, by reporting H.R. 1524,
the Employee Polygraph Protection Act, intends to protect employ-
ees by prohibiting the use of lie detectors in the private workforce;
protecting the thousands of innocent people who are wrongfully
denied employment each year because of these inaccurate devices.
PROHIBITIONS
The Committee recognizes that specific details elating to employ-
er prohibitions concerning the administration of lie detector tests
are needed to protect employees's rights. The Committee, by agree-
ing to language prohibiting employers from indirectly suggesting a
lie detector test, acknowledges a major concern that employers not
be allowed to "coerce" employees into volunteering for a test. As
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polygraphers and employees acknowledge, refusal to volunteer for
a test in a state that only prohibits an employer from requiring an
examination can many times result in the loss of a job. The bill
prohibits not only indirect suggestion of a lie detector test, but also
prohibits employers from requiring or requesting lie detector tests
or from referring to a test to change a person's employment status
in any way.
The Committee also recognizes the need to protect "whistleblow-
ers" from employer retaliation. The bill prohibits employers from
discriminating against a person who files a complaint or chooses to
testify in a proceeding related to lie detector violations.
NOTIFICATION REQUIREMENTS
The Committee understands that employees have an appropriate
need to be informed of their rights regarding lie detector tests in
the workforce. The bill makes a concerted effort to inform employ-
ees by requiring employers to post a notice in conspicuous places
on the premises at all times. This notice, which is similar to the
notices required by the Fair Labor Standards Act, will be prepared,
printed and distributed by the Secretary of Labor, relieving em-
ployers from all responsibility, except for posting requirements.
The Committee, by accepting the bill language, recognizes the need
for the Secretary of Labor to have adequate authority to effectively
enforce the Act, including the right to issue rules and regulations,
to make appropriate investigations and inspections, and to subpena
appropriate witnesses for any hearing or investigation.
The Committee recognizes the need for strong enforcement provi-
sions to discourage employers from violating this Act. By accepting
the language of the substitute to H.R. 1524, the Committee deter-
mined that relief by private right of action as well as by injunctive
enforcement by the Secretary of Labor will give victims a viable set
of remedies.
The Committee recognizes the seriousness of international viola-
tions of this Act by providing for civil penalties of up to $10,000.
This reported bill also details the administrative procedures for the
assessment and collection of these fines for intentional violations
as outlined in the Migrant and Seasonal Agricultural Worker Pro-
tection Act.
The Committee recognizes that certain employers should be ex-
empted from the provisions of this bill. It is the intent of this Com-
mittee that in matters of national security, private consultants,
contractors and employees of contractors will be exempted from
this Act when performing counterintelligence or intelligence work
with the Central Intelligence Agency, the National Security
Agency or the Federal Bureau of Investigation. The Committee also
acknowledges that cryptologists working for the CIA or NSA are
also exempted from this Act. This Committee reiterates the provi-
sion in Section 1221 of the Department of Defense Authorization
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Act, which allows the Department of Defense to administer lie de-
tector tests during the next two years as part of their limited coun-
terintelligence polygraph program. The Committee understands
that these exemptions will include private contractors as well as
individual consultants.
The Committee, recognizing that the theft or diversion of con-
trolled substances represents a threat to the security of our nation,
adopted language which would also allow the use of lie detectors on
those individuals with direct access to controlled substances in only
those cases when the theft of diversion of such substances has been
reported to the Drug Enforcement Administration as required by
current controlled substances law. This exemption must be consist-
ent with any state and local law, or collective bargaining agree-
ment governing polygraph use.
By allowing lie detectors to be administered to those employees
with direct access to controlled substances, after a reported theft,
we protect the rights of all other employees within the same facili-
ty. The Committee determines "direct access" to apply only to
those employees, including pharmacists and pharmacists techni-
cians, whose duties and responsibilities would bring these individ-
uals into the immediate areas where scheduled narcotics are
stored.
With regards to these exemptions, the Committee intends that
lie detectors only be used as one tool in the investigation of a theft.
During consideration of this legislation, members of the Commit-
tee, including the Chairman and ranking minority member of the
Subcommittee with jurisdiction and the author of the bill, empha-
sized that lie detectors shall not be used as the sole determinant of
an employer's action against an employee.
The Committee, by accepting the subcommittee substitute bill,
also placed the focus of coverage for the bill's provisions on employ-
ers to facilitate enforcement monitoring and also to expand Federal
agency exemptions. By defining "employer" to include any person
acting directly or indirectly in the interest of an employer in rela-
tion to any employee or prospective employee, private sector ac-
tions are broadened, and Federal employer exemptions are in-
creased.
OVERSIGHT FINDINGS
With reference to clause 2(1X3)(D) of rule XI of the Rules of the
House of Representatives, the Committee reports that no findings
or recommendations of the Committee on Government Operations
were received during the 99th Congress with reference to the sub-
ject matter addressed by H.R. 1524. This is new legislation. No
oversight findings exist which might be reported to conform with
clause 2(l)(3)(A) of rule XI of the Rules of the House of Representa-
tives.
COST ESTIMATE
The Congressional Budget Office (CBO) has provided the Commit-
tee on Education and Labor with the following estimate on the
costs involved in implementing this legislation. The Committee
concurs with and adopts CBO's estimate, pursuant to Clause 7 of
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Rule XIII of the Rules of the House of Representatives. No other
cost estimates have been received from any Federal agencies or de-
partments.
U.S. CONGRESS,
CONGRESSIONAL BUDGET OFFICE,
Washington, DC, November 7, 1985.
Hon. AUGUSTUS F. HAWKINS,
Chairman, Committee on Education and Labor, US. House of Rep-
resentatives, Rayburn House Office Building, Washington, DC.
DEAR MR. CHAIRMAN: The Congressional Budget Office has re-
viewed H.R. 1524, the Employee Polygraph Protection Act of 1985,
as ordered reported by the House Committee on Education and
Labor, October 23, 1985.
This bill outlaws the use of polygraph tests on any employee or
prospective employee by private employers. The Secretary of Labor
is directed to distribute notice that employers are prohibited from
using lie detector tests, to issue rules and regulations, and to en-
force the provisions of this act. No significant costs to the federal
government, and no cost to state or local governments is expected
to be incurred as a result of enactment of this bill.
If you wish further details on this estimate, we will be pleased to
provide them.
With best wishes,
Sincerely,
RUDOLPH G. PENNER, Director.
INFLATIONARY IMPACT STATEMENT
Pursuant to clause 2(l)(4) of rule XI of the Rules of the House of
Representatives and after reviewing the Congressional Budget
Office cost estimate, the Committee expects this legislation will not
have an inflationary impact upon prices and costs in the operation
of the national economy.
CHANGES IN EXISTING LAW MADE BY THE BILL, AS REPORTED
In compliance with clause 3 of Rule XIII of the Rules of the
House of Representatives, the Committee reports that there are no
changes to existing Federal law made by this bill as reported.
SECTION-BY-SECTION ANALYSIS OF H.R. 1524
SECTION 1-SHORT TITLE
This section cites the Act as the "Employee Polygraph Protection
Act of 1985".
SECTION 2-PROHIBITIONS OF LIE DETECTOR USE
Section 2 outlines the lie detector prohibitions for employers en-
gaged in commerce or the production of goods for commerce.
This section makes it illegal for employers, when dealing with
employees or potential employees, to:
1. Require, request, suggest or cause a person to take or
submit to any lie detector test;
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2. Use, accept, refer to, or inquire concerning the results of
any lie detector test;
3. Discharge, dismiss, discipline, or deny employment or pro-
motion to a person, or threaten to, for refusing, declining, or
failing to take or submit to any lie detector test or on the re-
sults of any lie detector test;
4. Discharge or discriminate (commit reprisal) against a
person for filing any complaint, instituting or causing to be in-
stituted, or testifying in any proceeding related to this Act.
SECTION 3-NOTICE OF PROTECTION
This Section requires the Secretary of Labor to prepare, print
and distribute a notice to employers that states employers are pro-
hibited by this Act from using a lie detector test on any employee
or prospective employee.
It also requires the employer upon receipt of the notice to post it
on the premises in a conspicuous place.
SECTION 4-AUTHORITY OF THE SECRETARY OF LABOR
Section 4 authorizes the Secretary of Labor to set up provisions
for the implementation of the Act by allowing the Secretary to:
1. Issue needed rules and regulations;
2. Work with regional, State, local or other agencies and fur-
nish assistance to employers, labor organizations, or employ-
ment agencies;
3. Investigate, inspect, and require proper recordkeeping.
This Section also gives the Secretary subpena authority for any
hearing or investigation as outlined by the Federal Trade Commis-
sion Act (Sections 9 and 10).
SECTION 5-ENFORCEMENT PROVISIONS
This Section allows the injunctive action by the Secretary of
Labor or private civil action for employees or potential employees
violated by Section 2 of this Act.
The U.S. District Courts have jurisdiction to issue temporary or
permanent restraining orders and injunctions as defined by the
Secretary of Labor. The Secretary is also allowed to access civil
penalties of not more than $10,000. The penalty is based on the
previous record in terms of compliance with the Act as well as the
gravity of the violation. Collection of such penalties is the same as
provided for in the Migrant and Seasonal Agricultural Worker Pro-
tection Act (Subsection (b) through (e) of Section 503).
Employees or potential employees may also pursue private civil
action. Employers in violation of this Act are liable for legal or eq-
uitable relief which may include employment, reinstatement, pro-
motion, payment of lost wages, or an additional amount as liquidat-
ed damages as well as the costs of such actions including attorney's
fees for prevailing plantiffs. Any one or more employees may bring
suit against the employer for the damages in any Federal or State
court.
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Section 6 exempts all governmental employers, whether Federal,
State, Local or a political subdivision.
There is also an exemption of private contractors doing business
related to intelligence or counterintelligence matters with specific
agencies. This section exempts certain private consultants, contrac-
tors and employees of contractors with the Central Intelligence
Agency, the National Security Agency and the Federal Bureau of
Investigation. It also exempts individuals assigned to space where
sensitive cryptologic information is produced, processed or stored
with the CIA or NSA.
This section prohibits this Act from prohibiting any lie detector
test of private contractors of any counterintelligence function used
by the Department of Defense pursuant to Section 1221 of the De-
partment of Defense Authorization Act, 1986.
A final exemption allows for employers to polygraph employees
with direct access to controlled substances when the substance has
been reported stolen to the Drug Enforcement Administration.
However, this exemption cannot conflict with state or local laws or
collective bargaining agreements.
SECTION 7-DEFINITIONS
This Section provides definitions for the term used in this Act.
It defines "lie-detector tests" as any examination involving the
use of any polygraph, deceptograph, voice stress analyzer, psycho-
logical stress evaluator, or any similar device whether mechanical,
electrical or chemical used to detect deception or verify truth.
It defines "employer" as anyone acting directly or indirectly on
behalf of an employer.
Reference to Section 3(b) of the Fair Labor Standards Act pro-
vides the definition of "commerce".
SECTION 8-EFFECTIVE DATE
Section 8 states the effective date as the date of enactment
except for Section 3, requiring the printing and posting of the pro-
hibition notice, which takes effect six months after the date of en-
actment.
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DISSENTING VIEWS ON H.R. 1524
We strongly oppose enactment of this legislation. In their efforts
to combat a few alleged abuses, the supporters of H.R. 1524 would
deny employers, employees, and consumers the use of a valuable
tool for combatting theft. Passage of this bill would cost some em-
ployers their business and, employees their jobs. Consumers would
pa an even greater price or goods and services they purchase.
The polygraph and other lie detectors are not perfect. We do not
claim that they are, nor that they. should be used as the sole means
of selecting an employee or deciding whether or not to retain an
employee. However, we are aware of any evidence that indicates
polygraphs are less accurate than alternatives such as application
forms, interviews, or background checks. Absent such evidence, we
see no reason why polygraphs should not continue to be available
to employers and employees to supplement other means to verify
employee honesty.
The debate surrounding the use of lie detectors tends to be more
emotional than objective. In part, this result is unavoidable. Deter-
mining the precise validity of polygraphs and other lie detectors is
close to impossible. Field studies are difficult to validate, and "labo-
ratory" studies cannot exactly replicate polygraph usage. The
Office of Technology Assessment (OTA) in its 1983 report, Scientific
Validity of Polygraph Testing, concluded that "no overall measure
or single, simple judgment of polygraph testing validity can be es-
tablished based on available scientific evidence. '
We agree that it is impossible to scientifically establish a single
figure for the accuracy of the polygraph. By the same token, it is
impossible to establish the accuracy of a personal interview or
background investigation as an employment tool. Yet on one is
holding the latter to a standard of 100% accuracy or advocating
their prohibition.
The majority's report accompanying this legislation relies on a
selective and arguably inaccurate recitation of federal studies to
date, while it ignores entirely a significant number of private stud-
ies ascribing a relatively high degree of accuracy to polygraph test-
ing. For example, it excerpts a quote from a 1965 report by a Gov-
ernment Operations subcommittee to buttress the case against
polygraphs while failing to state that the report did not advocate
banning polygraph tests, but rather recommended improvements in
the administration of such tests and further research. Likewise, the
findings of the 1983 study by OTA-the methodology of which has
been questioned-are reiterated only in part. In fact, OTA found
"meaningful scientific evidence of polygraph validity" in investi-
gating specific criminal incidents.
While science is uncertain, business is not. Testimony before the
Committee indicated that many employers who are vulnerable to
employee theft rely heavily on lie detectors, both to screen prospec-
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tive employees and to identify employee malfeasance. Employers
who rely on polygraphs are convinced that their use substantially
reduces losses due to theft, and in some cases represents the differ-
ence between a viable business and bankruptcy.
Yet once again, this Committee has chosen to substitute its judg-
ment for that of the people best able to judge. Business men and
women would not pay for polygraph tests if they were not reliable.
And yet, implicitly in this bill and explicitly in this report, the ma-
jority of the Committee has stated that polygraphs are not reliable.
The Committee has also chosen to establish a double standard;
one standard for the public sector and a much more restrictive one
for the private sector. All governmental employers-federal, state
and local-are exempt, as are private contractors involved in intel-
ligence or counterintelligence work.
This exemption is no doubt influenced by the House of Repre-
sentatives' action earlier this year during consideration of the De-
partment of Defense Authorization Act of 1986. By an overwhelm-
ing margin of 333 to 71, the House agreed to an amendment offered
by Representative Dickinson to require a polygraph examination of
individuals with access to certain classified information, both prior
to such access and aperiodically thereafter, and to allow such an
examination for other individuals. Like the House as a whole, a
vast majority of the Committee supported this amendment.
The legislation creates another exemption for the private sector.
Under the rubric of national security, the Committee has provided
for a limited exemption for the drug industry. Polygraph examina-
tions would be permitted for employees with "direct access" to con-
trolled substances following a theft or diversion that has been re-
ported to the Drug Enforcement Agency. However, the national se-
curity extrapolation is both tenuous and incomplete. Pre-employ-
ment screening in the drug industry is prohibited, and the exemp-
tion is nullified when a collective bargaining agreement or state
law prohibits the use of polygraph tests.
Despite agreeing to these exemptions and exceptions, the Com-
mittee erroneously maintains that polygraphs should not be per-
mitted in the private sector because they are not admissable as evi-
dence in our courts. The analogy between employment and judicial
use is a faulty one. In giving such deference to the courts, the Com-
mittees' majority overlooks the fact that the courts have repeatedly
permitted both the use of polygraphs and subsequent personnel ac-
tions in private employment for decades. Moreover, polygraph re-
sults have been, and continue to be, admitted as evidence in sever-
al state and federal courts. The practice is by no means universal,
and is generally subject to restrictions. For example, some courts
have permitted the introduction of polygraph results contingent
upon prior stipulation by both parties.
Unlike this judicial approach which is found in several state stat-
utes as well, H.R. 1524 would prohibit the use of polygraphs even
at the request of an employee. Where several employees have
access to a single cash register or inventory, no amount of good
management can identify an employee guilty of theft. Often it is
the employees who want to use a polygraph so as to help prove
their innocence.
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The Committee's decisions incorporated into H.R. 1524 are con-
tradictory. The Committee has seen fit to preempt state law in
almost all respects, yet has allowed state preemption in the area of
drug thefts. It has deemed polygraphs to be unreliable, yet has
found them of value with regard to national security. It has found
polygraphs effective in reducing the theft of drugs, yet has found
them ineffective in reducing the theft of jewels, money, or any
other product or service. It has declared them useful to the public
sector, but unavailable to the private sector.
We believe that this legislation should be rejected. It is unneces-
sary and will only result in an added burden on businesses, as well
as increased costs for consumers. At the very least, the bill should
be further amended to recognize the special needs of those indus-
tries-like the drug industry-that are especially vulnerable to em-
ployee theft. Two amendments were offered but not adopted in
Committee to accomplish this goal. Mrs. Roukema offered an
amendment to exempt the protective security industry, while Mr.
Armey offered an amendment to permit the broader use of poly-
graphs in the drug industry under certain procedures. These
amendments should be adopted by the House.
BILL (DOODLING.
MARGE ROVxEMA.
STEVE BARTLETr.
DICK ARMEY.
HARRIS W. FAwELL.
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SUPPLEMENTAL VIEWS BY THE HONORABLE STEVE GUN-
DERSON ON H.R. 1524-THE "EMPLOYEE POLYGRAPH
PROTECTION ACT OF 1985"
While I oppose a complete ban on the use of polygraph testing in
the private sector workplace, as is provided for the most part in
H.R. 1524, I share the opinion of the Committee that the accuracy
of these examinations is questionable. In many cases, this problem
of examination validity, combined with a number of other factors,
has resulted in unfairly discriminating against job applicants and
employees.
According to recent studies, the use of polygraphs has tripled in
the last 10 years. Although exact numbers vary, it has been report-
ed that well over 1 million polygraph exams are given each year
with an increasing percentage of those test administered to work-
ers and job applicants. In fact, according to a study published by
the Office of Technology Assessment (OTA) in November, 1983, pri-
vate employers were found to be responsible for more polygraph ex-
aminations every year than either criminal justice investigators or
the Federal government.
Polygraphs are used by a variety of businesses, but are particu-
larly prevalent in businesses where the risk of theft and fraud are
high and employee turnover is high as well. At a time when busi-
ness and industry are experiencing tremendous losses each year
due to employee theft, with losses as high as $10 billion per year in
the retailing industry alone, it is no wonder that businesses are
using any tool they can in order to prevent such thefts. According
to the Drug Enforcement Agency, for the period from July 1984 to
March 1985, a total of 8,861 drug thefts were reported to the Drug
Enforcement Agency (DEA), with 15 percent of those attributed to
employees-a percentage that seems to be on the rise according to
statistics. Reasons given by employers for using the polygraph
exam in screening job applicants include: Verification of the truth
on employment applications; screening out of potential thieves; pre-
vention of industrial espionage, and detection of drug and/or alco-
hol abuse where appropriate, amongst applicants; among others.
These are facts about a future employee which an employer has
the right to know. However, the real question is whether or not the
polygraph exam is really the proper tool by which to gain this in-
formation.
Arguments against the use of polygraph exams within the pri-
vate sector range from the uncertainty of its actual validity to the
potential for examiner discrimination and inappropriate question-
ing to occur. There has been surprisingly little research in the area
of polygraph validity, particularly for those used in business. The
results of such studies on polygraph accuracy that do exist, vary
widely, depending on the methodology used and the motives of the
researchers, among other factors. Further, the types of individuals
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tested, training of the individual examiners, and the purpose of the
test and types of questions asked can differ substantially. It is also
feared that polygraph testing can also be subject to a number of
countermeasures such as physical movement, drugs, hypnosis, bio-
feedback, and prior experience in passing an exam that can affect
validity. OTA also concluded that the mathematical chances of in-
correctly identifying innocent persons as deceptive, even with an
accurate test (false positives) is the highest when the polygraph is
used for screening purposes.
So, the real question here is while we are not convinced that the
polygraph test is always an accurate, fair method of employee
screening, is it the proper role of the Federal government to pro-
hibit its use within the private sector-particularly within those in-
dustries at the highest risk of employee theft.
During Committee consideration, I expressed my reservations
about providing a Federal ban of all polygraph testing, particularly
when this bill would do nothing to prohibit examination use within
Federal, State, or local government entities. Again, I am however,
torn over the fact that test inaccuracies, particularly when used in
job applicant screening when tension runs high, can result in dis-
crimination against an honest job applicant or employee.
To address this problem, it has been my feeling that such poly-
graph testing should be allowed in certain circumstances with
regard to current employees where actual employee theft triggers
testing-such as provided in the Committee-adopted amendment on
pharmaceutical industry testing. And, I feel that in certain, very
"high risk" industries, pre-employment testing might be useful, as
well as defensible, if conducted along with other traditional forms
of screening such as interviewing and checking references. Howev-
er, I cannot totally oppose the provisions of H.R. 1524, in that I
have concerns over inaccuracy and abuse in polygraph testing as
an employment practice.
If and when H.R. 1524 comes to the floor of the House, I expect
to be open to arguments pro and con with regard to this issue, par-
ticularly with regard to this bill. I should think that the Congress
can find a responsible, appropriate role for the Federal government
to take in order to in some way oversee polygraph testing in the
private sector workplace. I know that this is not an easy role to de-
termine, however any answer that we ascertain must be fair to
both employees and employers.
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99TH CONGRESS
1ST SESSION
House Calendar No. 108
H. RES. 33?
[Report No. 99-431]
Providing for the consideration of the bill (H.R. 1524) to prevent the denial of
employment opportunities by prohibiting the use of lie detectors by employers
involved in or affecting interstate commerce.
IN THE HOUSE OF REPRESENTATIVES
DECEMBER 10, 1985
Mr. MOAKLEY, from the Committee on Rules, reported the following resolution;
which was referred to the House Calendar and ordered to be printed
RESOLUTION
Providing for the consideration of the bill (H.R. 1524) to pre-
vent the denial of employment opportunities by prohibiting
the use of lie detectors by employers involved in or affecting
interstate commerce.
1 Resolved, That at any time after the adoption of this
2 resolution the Speaker may, pursuant to clause 1(b) of rule
3 XXIII, declare the House resolved into the Committee of the
4 Whole House on the State of the Union for the consideration
5 of the bill (H.R. 1524) to prevent the denial of employment
6 opportunities by prohibiting the use of lie detectors by em-
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2
1 ployers involved in or affecting interstate commerce, and the
2 first reading of the bill shall be dispensed with. After general
3 debate, which shall be confined to the bill and shall continue
4 not to exceed one hour, to be equally divided and controlled
5 by the chairman and ranking minority member of the Com-
6 mittee on Education and Labor, the bill shall be considered
7 for amendment under the five-minute rule. It shall be in
8 order to consider the amendment in the nature of a substitute
9 recommended by the Committee on Education and Labor
10 now printed in the bill as an original bill for the purpose of
11 amendment under the five-minute rule and each section shall
12 be considered as having been read. At the conclusion of the
13 consideration of the bill for amendment, the Committee shall
14 rise and report the bill to the House with such amendments
15 as may have been adopted, and any Member may demand a
16 separate vote in the House on any amendment adopted in the
17 Committee of the Whole to the bill or the committee amend-
18 ment in the nature of a substitute. The previous question
19 shall be considered as ordered on the bill and amendments
20 thereto to final passage without intervening motion except
21 one motion to recommit with or without instructions.
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99TH CONGRESS
IST SESSION He R. 3916
To set minimum standards for the administration of polygraph examinations, to
encourage the States and local governments to establish programs regulating
the administration of polygraph examinations in accordance with such stand-
ards, and for other purposes.
IN THE HOUSE OF REPRESENTATIVES
DECEMBER 11, 1985
Mr. YOUNG of Florida (for himself and Mr. DARDEN) introduced the following bill;
which was referred to the Committee on Education and Labor
A BILL
To set minimum standards for the administration of polygraph
examinations, to encourage the States and local govern-
ments to establish programs regulating the administration of
polygraph examinations in accordance with such standards,
and for other purposes.
1 Be it enacted by the Senate and House of Representa-
2 tives of the United States of America in Congress assembled,
3 That this Act may be cited as the "Polygraph Reform Act of
4 1985".
5 DEFINITIONS
6 SEC. 2. For the purposes of this Act-
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1 (1) the term "commerce" has the meaning provid-
2 ed by section 3(b) of the Fair Labor Standards Act (29
3 U.S.C. 203(b));
4 (2) the term "employer" has the same meaning
5 as-
6 (A) such term is defined in section 2(2) of the
7 National Labor Relations Act (29 U.S.C. 152(2));
8 and
9 (B) the term "carrier" is defined in section 1
10 of the Railway Labor Act (45 U.S.C. 151);
11 (3) the term "polygraph examination" means-
12 (A) any examination involving the use of any
13 polygraph, deceptograph, voice stress analyzer,
14 psychological stress evaluator, or any other simi-
15 lar device which is used for the purpose of detect-
16 ing deception or verifying the truth of statements;
17 and
18 (B) any interview of any employee or pro-
19 spective employee that uses any device referred to
20 in subparagraph (A) regardless of terms used in
21 reporting to an employer the findings, opinions, or
22 statements made in or results of such examina-
23 tion;
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1 (4) the term "polygraph examiner" means any
2 person who conducts a polygraph examination as de-
3 fined in paragraph (3) of this section; and
4 (5) the term "Secretary" means the Secretary of
5 Labor.
6 FINDINGS AND PURPOSE
7 SEC. 3. (a) The Congress finds that-
8 (1) the improper use of polygraph examinations in
9 work situations in industries engaged in interstate com-
10 merce imposes a substantial burden on interstate com-
11 merce through loss of employment and employment op-
12 portunities; and
13 (2) the free flow of goods and services in inter-
14 state commerce is burdened by theft, dishonesty, and
15 breaches of trust by dishonest employees and by crimes
16 committed against employees, customers, and the
17 public.
18 (b) The purposes of this Act are to-
19 (1) establish minimum standards for the use of
20 polygraphs in employment;
21 (2) encourage the States and local governments to
22 administer such standards in accordance with the poli-
23 cies of this Act;
24 (3) provide relief for the improper use of poly-
25 graphs; and
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1 (4) provide for Federal oversight of the adminis-
2 tration of such standards.
3 PROHIBITION OF POLYGRAPH TESTING NOT IN
4 ACCORDANCE WITH MINIMUM STANDARDS
5 SEC. 4. No employer may take any action affecting the
6 employment status of an employee or prospective employee,
7 if such action is based on the results of a polygraph examina-
8 tion of such employee or prospective employee that has not
9 been administered in accordance with sections 5 and 6 of this
10 Act.
11 RIGHTS OF POLYGRAPH EXAMINEE
12 SEC. 5. (a) Each prospective examinee shall sign a noti-
13 fication prior to any polygraph examination which states
14 that-
15
(1) such examinee is consenting voluntarily to
16
take the examination;
17
(2) the polygraph examiner may not inquire
18
into-
19
(A) religious beliefs or affiliations;
20
(B) beliefs or opinions regarding racial mat-
21
ters;
22
(C) political beliefs or affiliations;
23
(D) sexual preferences or activities, unless
24
necessary to determine the qualifications of the
25
employee to be employed by a nursing home, rest
26
home, sanitarium, hospital, day nursery or similar
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1 child care facility, or such other institution or
2 service in which the well-being of children, the
3 aged, handicapped, or infirm are entrusted to the
4 care of the employees of such institutions or serv-
5 ices; or
6 (E) beliefs, affiliations, or opinions regarding
7 unions or labor organizations;
8 (3) such examinee may terminate the examination
9 at any time;
10 (4) such examinee shall be provided with a writ-
11 ten copy of any opinions or conclusions rendered as a
12 result of the examination upon written request and
13 payment of a reasonable fee by such examinee;
14 (5) the polygraph examiner is prohibited from
15 asking the examinee any question during the examina-
16 tion that is not in writing and was not reviewed with
17 the examinee prior to the examination;
18 (6) such examinee has specific legal rights and
19 remedies if the polygraph examination is not conducted
20 in accordance with the provisions of this Act; and
21 (7) such examinee may receive a copy of the noti-
22 fication upon written request.
23 (b) Upon written request from an examinee, a polygraph
24 examiner shall provide a signed copy of all opinions or con-
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1 clusions of a polygraph examination rendered in accordance
2 with section 6 of this Act.
3 (c) No action may be taken by an employer regarding
4 the employment status of an employee or an applicant for
5 employment that is based solely on opinions or conclusions of
6 a polygraph examiner reached by analysis of a polygraph
7 chart.
8 MINIMUM STANDARDS FOR POLYGRAPH EXAMINATIONS
9 SEC. 6. (a) A polygraph examination may be conducted
10 only by a person who-
11 (1) is at least twenty-one years of age;
12 (2) is a citizen of the United States;
13 (3) is a person of good moral character;
14 (4) is in compliance with all laws, rules, and regu-
15 lations of any appropriate State or local government
16 authority; and
17 (5)(A) has successfully completed a formal training
18 course in the use of polygraphs that has been approved
19 by the Secretary; and
20 (B) has completed a polygraph examiner intern-
21 ship of at least six months in duration under the direct
22 supervision of a polygraph examiner who has met the
23 requirements of this section.
24 (b) Notwithstanding the provisions of paragraph (5) of
25 subsection (a), a person shall be permitted to conduct a poly-
77 3016 III
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1 graph examination in accordance with the provisions of this
2 Act, if such person-
3 (1) has met the requirements of paragraphs (1)
4 through (4) of subsection (a); and
5 (2)(A) on the date of enactment of this Act, holds
6 a valid polygraph examiner license issued by a State
7 licensing authority; or
8 (B)(i) within a period of five years immediately
9 preceding the date of enactment of this Act, has con-
10 ducted not less than two hundred polygraph examina-
11 tions; and
12 (ii) within one year after the date of enactment of
13 this Act, has satisfactorily completed a formal training
14 course in the administration of polygraph examinations
15 approved by the Secretary.
16 (c) All examiners meeting the requirements of subsec-
17 tions (a) and (b) of this section shall be required every
18 twenty-four months to complete not less than twenty-four
19 hours of continuing education approved by the Secretary re-
20 garding the use of polygraphs.
21 (d) A polygraph examiner may not ask a question during
22 a polygraph examination, unless such question is in writing
23 and has been reviewed with the examinee prior to such
24 examination.
25 (e) A polygraph examiner may not inquire into-
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1 (1) religious beliefs or affiliations;
2 (2) beliefs or opinions regarding racial matters;
3 (3) political beliefs or affiliations;
4 (4) sexual preferences or activities, unless neces-
5 sary to determine the qualifications of the employee to
6 be employed by a nursing home, rest home, sanitarium,
7 hospital, day nursery or similar child care facility, or
8 such other institution or service in which the well-
9 being of children, the aged, handicapped, or infirm are
10 entrusted to the care of the employees of such institu-
11 tions or services; and
12 (5) beliefs, affiliations, or opinions regarding
13 unions or labor organizations.
14 (f) A polygraph examiner may not perform more than
15 twelve polygraph examinations in any twenty-four period.
16 (g)(1) A polygraph examiner shall-
17 (A) use an instrument which records continuously,
18 visually, permanently, and simultaneously changes in
19 cardiovascular, respiratory, and galvanic skin response
20 patterns as minimum instrumentation standards; and
21 (B) base an opinion of truthfulness upon changes
22 in physiological activity or reactivity in the cardiovas-
23 cular, respiratory, and galvanic skin response patterns.
24 (2) A polygraph examiner may use an instrument which
25 records additional physiological patterns as measured in para-
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1 graph (1) and may consider such additional patterns in ren-
2 dering an opinion.
3 (h) All conclusions or opinions of the polygraph examin-
4 er arising from the polygraph examination shall-
5 (1) be in writing and based only on polygraph
6 chart analysis;
7 (2) contain no information other than admissions,
8 information, and interpretation of the chart data rele-
9 vant to the purpose and stated objectives of the exami-
10 nation; and
11 (3) contain no recommendation regarding the pro-
12 spective or continued employment of an examinee.
13 (i) A polygraph examiner shall maintain all opinions, re-
14 ports, charts, questions lists, and all other records relating to
15 the polygraph examination for a minimum of two years after
16 administering such examination.
17 CERTIFICATION OF ADMINISTRATIVE PLANS
18 SEC. 7. (a) Any State or local government agency which
19 desires to develop and enforce standards for the use of poly-
20 graphs by employers and polygraph examiners may submit an
21 administrative plan to the Secretary at such times, in such
22 manner, and containing or accompanied by such information
23 as the Secretary may reasonably require. Such plan shall-
24 (1) identify any agency designated as responsible
25 for administering the plan;
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1 (2) describe the standards in the administrative
2 plan governing polygraph examiners and the use of
3 polygraph examinations;
4 (3) provide assurances that such standards and the
5 enforcement of such standards, shall be at least as ef-
6 fective as the standards set out in this Act; and
7 (4) explain the manner in which the standards in
8 such plan are administered and enforced by such
9 agency to assure compliance with this Act.
10 (b) The Secretary may approve and certify any adminis-
11 trative plan providing adequate assurances and meeting the
12 requirements of subsection (a).
13 (c) The Secretary shall make a continuing evaluation of
14 each administrative plan which has been certified. If the Sec-
15 retary finds that a plan is not being administered in a manner
16 that assures substantial compliance with the standards of this
17 Act, the Secretary shall notify the State or local government
18 of the withdrawal of certification of such plan and, upon re-
19 ceipt of such notice, such plan shall cease to be in effect.
20 (d) Review of a decision of the Secretary to withdraw
21 certification of an administrative plan under this section may
22 be obtained in the United States court of appeals for the cir-
23 cuit in which the State or local government agency is located
24 by filing a petition for review with such court within thirty
25 days after receipt of the notice of withdrawal of certification.
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1 CERTIFICATION OF POLYGRAPH EXAMINERS
2 SEC. 8. (a)(1) No person may conduct a polygraph ex-
3 amination, unless such person is-
4 (A) certified by the Secretary to conduct poly-
5 graph examinations;
6 (B) conducting such examinations in compliance
7 with sections 5 and 6 of this Act; and
8 (C) implementing rules and regulations issued by
9 the Secretary pursuant to section 12 of this Act.
10 (2) The provisions of paragraph (1) shall not apply if
11 such person has met the requirements of an administrative
12 plan adopted pursuant to section 7 of this Act.
13 (b) The Secretary shall make a continuing evaluation of
14 each certification required by subsection (a) of this section. If
15 the Secretary finds that a person is not in compliance with
16 the provisions of sections 5, 6, and 7 of this Act, the Secre-
17 tary shall notify the person of the withdrawal of certification
18 and, upon receipt of such notice, such person may not con-
19 duct polygraph examinations.
20 (c) Review of a decision of the Secretary to withdraw a
21 certification under this section may be obtained in the United
22 States district court in the district in which the person resides
23 or has a principal place of business by filing a petition for
24 review with such court within thirty days after receipt of the
25 notice of withdrawal of certification.
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1 DISCLOSURE OF INFORMATION
2 SEC. 9. (a) A person may not disclose information ob-
3 tained during a polygraph examination, except as provided in
4 this section.
5 (b) A polygraph examiner, polygraph trainee, or em-
6 ployee of a polygraph examiner may disclose information ac-
7 quired from a polygraph examination only to-
8 (1) the examinee or any other person specifically
9 designated in writing by the examinee; and
10 (2) the person or governmental agency that re-
11 quested the examination.
12 (c) An employer for whom a polygraph examination is
13 conducted may disclose information from the examination
14 only to a person described in subsection (b).
15 WAIVER OF RIGHTS PROHIBITED
16 SEC. 10. The rights and procedures provided pursuant
17 to this Act may not be waived by contract or otherwise. No
18 polygraph examiner may request an examinee to waive any
19 such right or procedure.
20 NOTICE OF PROTECTION
21 SEC. 11. The Secretary shall prepare and print a notice
22 setting forth information necessary to effectuate the purposes
23 of this Act. Such notice shall be posted at all times in con-
24 spicuous places upon the premises of every employer engaged
25 in any business in or affecting interstate commerce.
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1 AUTHORITY OF THE SECRETARY
2 SEC. 12. The Secretary shall-
3 (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 as-
7 sistance to employers, labor organizations, and employ-
8 ment agencies to carry out the purposes of this Act;
9 and
10 (3) make investigations and inspections and re-
11 quire the keeping of records necessary and appropriate
12 for the administration of this Act.
13 CIVIL PENALTIES
14 SEC. 13. (a) Subject to the provisions of subsection (b) of
15 this section, whoever violates this Act may be assessed a
16 civil penalty of not more than $10,000 by the Secretary.
17 (b) In determining the amount of any penalty under sub-
18 section (a) of this section, the Secretary shall consider the
19 previous record of the person in complying with the Act and
20 the gravity of the violation.
21 RELIEF
22 SEC. 14. (a) Any person who is given a polygraph ex-
23 amination in violation of this Act may bring a civil action
24 against the polygraph examiner in the United States district
25 court in the district in which the alleged violation occurred or
26 in which the examiner has its principal office.
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1 (b) Upon a finding of a violation of this section, such
2 court may grant appropriate relief, including the imposition of
3 a civil fine of not more than $10,000.
4 (c) In addition to the relief provided in subsections (a)
5 and (b) of this section, an employee or prospective employee
6 seeking relief from a violation of this Act in which the certifi-
7 cation requirements of section 7 of this Act have not been
8 complied with, shall be provided relief in accordance with the
9 provisions of sections 11(b), 16, and 17 of the Fair Labor
10 Standards Act of 1938 (29 U.S.C. 211(b), 216, and 217).
11 Amounts owing to a person as a result of a violation of this
12 Act shall be deemed to be unpaid minimum wages or unpaid
13 overtime compensation for purposes of sections 16 and 17 of
14 the Fair Labor Standards Act of 1938 (29 U.S.C. 216 and
15 217).
16 (d) The remedies provided by this Act shall be exclusive
17 and may not be construed to permit a cause of action by an
18 examinee against any party other than an employer, a pro-
19 spective employer, or a polygraph examiner.
20 (e) If a State or local government agency is in compli-
21 ance with section 7 of this Act, any person seeking relief
22 under this section must first exhaust the remedies of the ad-
23 ministrative plan of the State or local government agency.
24 EFFECTIVE DATE
25 SEC. 15. This Act shall take effect one year after the
26 date of enactment.
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H 11950 CONGRESSIONAL RECORD - HOUSE December 12, 1985
Mr. MICHEL. Mr. Speaker, I take farm bill, if reported on Monday next, union for the consideration of the bill (H.R.
this time for the purpose of inquiring December 16, may be considered by 1524) to prevent the denial of employment
of the majority leader, it is my under- the House on the same day? I am opportunities by prohibiting the use of lie
detectors by employers involved in
standing the majority leader was pre- asking that the rule may be considered or affect.
ing interstate commerce, and the first read-
pared to make several unanimous-con- by the House. ing of the bill shall be dispensed with. After
sent requests relative to the bringing The SPEAKER. Is there objection general debate, which shall be confined to
up of conference reports on Monday to the request of the gentleman from the bill and shall continue not to exceed one
and waiving points of order. Texas? hour. to be equally divided and controlled
On the continuing resolution, I Mr. CONTE. Reserving the right to by the chairman and ranking minority
would rather delay giving unanimous object, Mr. Speaker, the thing I am member of the Committee on Education
consent to waiving points of order on concerned about on the appropriation and Labor, the bill shall be considered for
the continuing resolution until the bill is that you can go to the bill and amendment under the five-minute rule. It
shall be is order to consider the amendment
gentleman from Massachusetts and make certain amendments in order in the nature of a substitute recommended
the gentleman from Mississippi have that would not be germane and we by the Committee on Education and Labor
an opportunity to discuss an item that would not have an opportunity to now printed in the bill as an original bill for
we did last year in this same kind of raise an objection. I would like to have the purpose of amendment under the five.
process. If there is that general accord a little more time to talk with my com- minute nil e and each section shall be con- j
and agreement, we can agree to that mittee chairman about where we are sidered as having been read. At the conclu.
unanimous-consent request. going to go and reach some kind of an lion of the consideration of the bill for
agreement with him. amendment, the Committee shall rise and
RECESSES AT T ANY r M EON M TO DECLARE report the bill to the. House with such
Y zTI ME ON MONDAY NEXT Mr. WHITT~N. Mr. Speaker, if the.: amendments as may have been adopted, and
Mr. WRIGHT. If the gentleman will gentleman will yield, the gentleman any Member may demand a separate vote in
yield, Mr. Speaker. I ask unanimous and I have reached agreement in the the House on any amendment adopted in
consent that it may be order for the past. I would be glad to discuss with the Committee of the Whole to the bill or
Speaker to declare recesses at any him the situation on this. I would like the ommit amendment ~oinethon nature
time on the legislative day Monday, to have a little more time, too, to just a substitute.
ordered on the. bill shall and
December 16, 1985, subject to the call see what it means. considered as amendments there ordered final passage without
of the Chair. Mr. CONTE. All right. Then I Intervening motion except one motion to re
The SPEAKER. Is there objection object, Mr. Speaker. commit with or without instructions.
to the request of the gentleman from The SPEAKER. The gentleman ob- The SPEAKER. The gentleman
Texas? jects?
Mr. WRIGHT. May I Inquire of the Mr. CONTE. At this time, yes. Mr? from Massachusetts [Mr. MOAxLEYI is gentleman further, with respect to Speaker. recognized Mr. MOAKLEY. for or 1 1 hour.
Mr. Speaker, I yield
other unanimous consent requests The SPEAKER. Objection is heard. 30 Mr. reld
that may be useful, would the gentle- REQUEST TO WAIVE 3-DAY RULE FOR CONSIDER- the tleman customary Tennessee minu es to the EN-(Mr. Q man have an objection to a unani- ATION or CONFERENCE REPORT ON THE FOOD for the purpose debate only, and
moos-consent request waiving points SECURITY ACT OF 1886 ON MONDAY NEXT yield myself such time
of order with specific reference to the Mr. WRIGHT. Mr. Speaker, would pending that I
Deficit Reduction Amendments of the gentleman consider this unani- as I may use.'
1985 or the Food Security Act of 1985? mous-consent request: Mr. Speaker, I - (Mr. MOAKLEY asked and was
Mr. MICHEL. I would inquire of the. ask unanimous consent to waive the 3- given permission to revise and extend
gentleman; is that reconciliation? day rule on the Food Security Act of his remarks.)
Mr. WRIGHT. The reconciliation 1985 with respect to the conference Mr, MOAKLEY. Mr. Speaker, House
bill or the farm bill. report or any rule that may be report- Resolution 337 is an open rule that
Mr. MICHEL. I cannot give the gen- ed with respect to that bill on Monday provides for the consideration of the
tleman unanimous-consent request on next. bill H.R. 1524, the Polygraph Protec-
reconciliation at this time. I was The SPEAKER. Is there objection tion Act of 1985.
hoping that Mr. MADIGAN would be to the request of-the gentleman from Mr. Speaker, the rule provides 1
available to make sure that we could Texas? hour of general debate, to be equally
be all right on waiving points of order Mr. MICHEL. Mr. Speaker, reserv- divided between the chairman and
on the farm bill. ' ing the right to object, I would hope ranking minority member of the Com-
REQUEST FOR CONSIDERATION or SUNDRY RULES that the majority leader would with- mittee on Education and Labor.
ON MONDAY NEXT hold that until I get hold of my rank- House Resolution 337 also makes in
Mr. WRIGHT. Mr. Speaker. I ask ing minority member to make. sure order an Education and Labor Com-
unanimous consent that rules reported that everything is on the square. mittee amendment in the nature of a
by the Rules Committee, if necessary. Mr. WRIGHT. Mr. Speaker, I with- substitute now printed in the bill as
regarding the continuing resolution draw the unanimous-consent request original text for the purpose of
appropriations and the Food Security at this time. ~ amendment. The substitute is to be
Act of 1985 and the Deficit Reduction The SPEAKER. The gentl?m9.n considered by section, with each sec-
Amendments of 1985 may be consid- withdraws his request. tion to be considered as read. In addi-
ered on the same day if reported by 117 tion, Mr. Speaker, the rule provides
for one motion to recommit with or
the Rules Committee on Monday next.
ROVIDING FOR CONSIDER- without instructions.
0 1650 ATION OF H.R. 1524. POLY- H.R. 1524, the Employee Polygraph
: -
-L
ction Act of
_
" -
The SPEAKER. Is there objeetio %Jn' rn rn V arl%l J. AVA. ..va aavw
to the request of the gentleman from 1985 J would prohibit private employers in-
Texas? Mr. MOAKLEY. Mr. Speaker, by di- volved in interstate commerce from re-
Mr. MICHEL. Mr. Speaker, reserv- rection of the Committee on Rules, I quiring their employees, or their pro-
ing the right to object, particularly on call up House Resolution 337 and ask spective employees from submitting to
reconciliation, I have got to see that for its immediate consideration. Polygraph tests. This legislation is in-
reconciliation act before agreeing to The Clerk read the resolution, as fol- tended to protect workers who are
that unanimous-consent request. lows: wrongfully denied employment and
Mr. WRIGHT. May I ask unanimous H. RES. 337 whose careers are devastated because
consent, then, Mr. Speaker, that any Resolved, That at any time after the adop- of lie detector test inaccuracies and
rules reported by the Rules Commit- tion of this resolution the Speaker may, employer abuses. The bill provides
tee with respect to the Continuing Ap- pursuant to clause 1(b) of rule XXIII, de- that employers who violate its provi-
propriations Act of 1986 or the Food clare the House resolved into the Commit- sions may be assessed a civil penalty of
Security Act of 1985, the so-called tee of the Whole House on the State of the up to $10,000.
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December 12, 1885 CONGRESSIONAL RECORD - HOUSE H 11951
Mr. Speaker, the bill does make ex- In fact, the Office of Technology As- I urge adoption of the open rule, and
ceptions for Federal and State govern- sessment found "meaningful scientific I yield back the balance of my time.
ment employees, It also exempts drug. evidence of polygraph validity." H.R. Mr. MOAKLEY. Mr. Speaker, for
company employees who have direct 1524 is an emotional, rather than an purposes of debate only, I yield 3 min-
access to controlled substances In con- objective, response to insuring that utes to the gentleman from Georgia
nection with an official theft investi- polygraphs are used in a way that is [Mr. DARDEN].
gation. The bill provides an additional reasonable and not violative of civil Mr. DARDEN. Mr. Speaker, I thank
exception for employees related to rights and privacy concerns. yielding.
CIA, FBI, and the National Security Second, H.R. 1524 is poorly drafted the gentleman. p ker for a forme
Agency. Because of the recent spy and could unintentionally thwart our MrSpeaker, as a former district at-
Agency. the Government is consider- efforts to combat terrorism and espio- torney, I am opposed to this bill in its
ing a requirement that all Govern- nage. present form; however, I want to com-
ment employees and contractors who I base this on the fact that the ex- mend the . gentleman from Montana
have or want to obtain a high-level se- emption language in section 6 is not [Mr. WILLIAMS] for bringing the issue
curity clearance take a polygraph test, broad enough. For example, while it before this House which needs some
Mr. Speaker, H.R. 1524 is an attempt appears on its face that DOD contrac- serious debate and consideration.
to answer the complaint that lie detec- tors are exempt, It is unclear whether I think it is very evident, Mr. Speak-
tor tests are inaccurate in the hiring personnel involved at securities re- er, that polygraphs have been abused
of workers, and would require employ- search laboratories could be screened in many instances. I believe that poly-
ers to use more reliable ways to verify by a polygraph to insure their reliabil- graphs should be regulated and that
personnel information. ity. minimum standards should be irn-
Mr. QUILLEN. Mr. Speaker, I yield One of the most serious defects in posed.
myself such time as I may use. H.R. 1524 is the failure of section 6 to Accordingly, Mr. Speaker, on this
(Mr. QUILLEN asked and was given provide-for an exemption for employ- day the gentleman from Florida [Mr.
permission to revise and extend his re- ees of* commercial aviation and em Yovxc] and I have introduced H.R.
marks.) ployees who have access to secure 3916 which will be offered when this
Mr, QUILLEN. Mr. Speaker, the rule areas of airports. Airlines are responsi- matter comes to the floor, In the
has been ably explained. It Is an open ble for the safety of passengers, cargo nature of a substitute. -
rule, but the bill is controversial. I re- and aircraft. Let me, say that the bill In its
ceived a number of wires and commu- Mr. Speaker, . recent international present form, Mr. Speaker, to which I
nications today in opposition to the and domestic incidents demonstrate am adamantly -opposed, would effec-
measure. the unique, danger to air travel of ter- tively do away with the use of all poly-
Mr. Speaker, I oppose the measure rorist and hijack attempts against graphs as far as private industry is
on final.passage, but .I do not oppose commercial aviation. Just last July, concerned.
the rule. I urge the adoption of the Congress, in reaction to a lack of secu- Let me 'emphasize, there have been
rule. rity at airports outside the United abuses in the past, Mr.' Speaker, but I
Mr. Speaker, I yield 5 minutes to the States, passed legislation specifically believe that an orderly regulation of
gentleman from New York [Mr. FISH]. dealing with terrorism. this industry: should be imposed and
(Mr. FISH.asked and was given per- If offered, I will strongly support that is what my substitute, which this
mission to revise and extend his re- amendments that would permit the rule allows, will do.
marks). use of polygraphs to screen employees - Let me say in conclusion, Mr. Speak-
Mr. FISH. Mr. Speaker, I thank the of commercial aviation and secure er, that while I disagree with the origi-
gentleman for yielding me this time, areas of airports if the duties of these . nal bill. I heartily support this open
t is not my ito take the individuals involve access-to aircraft, rule and urge its passage by, the
Iful 5 minutes that intention o so generously either directly or indirectly through House,
offered, but I that rise was s e mess food services, maintenance, or baggage Mr. MOAKLEY. Mr. Speaker, I yield
oofered over the Em I s my handling. I would also support any 3 minutes to the gentleman from Mon-
p yer Poly- broadening of section 6 to include pri- tana [Mr. WILLIAMS].
graph Protection Act of 1985, 'which vate security are both procedural and substantive. personnel. - thank gentleman.
r. Speaker, I
On the procedural side, H.R. 1524 Finally, thank the genlemwas reported out of the Education and about t thI he lack have of a serious provision that ? As the people on both sides of this
Labor Committee only last week, on would exempt Government contrac-
tors who are subject to the provisions issue fully recognize now, this is the
December 5, 1985. It received a rule of the Privacy Act. For example, there good rule. It is an open rule. It is the
late Tuesday night, and, until a couple are a number of Government contrac- best that either side could hope for
of hours ago, was to be considered by tors who have access to highly sensi- and it is not contentious.
the full House of Representatives. tive information such as tax records, Likewise, the bill has had a signifi-
H.R. 1524 was clearly drafted to loan applications, and other credit in- cant amount of support. It has gath-
insure that the House Judiciary Com- formation. These contractors routine- ered about 170 cosponsors on both
mittee would not review any of its pro- ly use polygraphs, in addition to other sides of the aisle, because people be-
visions. The Judiciary Committee, over standard employee evaluation tools, to lieve that the growing number of poly-
the years, has held many hearings Insure that their employees do not use graphs in the private sector needs to
that attest to the accuracy and bene- such Information in a fraudulent be stemmed. Both sides understand
fits of the use of the polygraph. How-. manner. there are abuses. With this legislation
ever, the Judiciary Committee was In conclusion, while there is consid- we are simply trying to stem those
short-circuited, and did not have any erable merit to H.R. 1524, it needs seri- abuses. -
opportunity to improve the bill. ous improvement. Hopefully, in the, There are 2 million polygraph lie de-
My substantive concerns are several ensuing weeks and months, a reasona- tector examinations a year given now
in nature: ble compromise can be worked out to In the United States and 98 percent of
First, H.R. 1524 is drafted under the ensure that polygraphs will be used those are given by private business, far
assumption that polygraphs are not a professionally and accurately while outstripping the amount given by gov-
useful method to screen Individuals not jeopardizing legitimate uses of this ernment and criminal pursuits com-
for employment purposes or to help in device, especially in the area of tom- biped.
the investigation of theft losses or batting terrorism and espionage. The number of tests given In this
breaches of security. Employers who country has tripled in just the past 10
rely on polygraphs as a screening tool . ^ 1700 years. We are simply trying to stem
are convinced of the validity of this - Mr. QUILLEN. Mr. Speaker, I have the tide and bri'soe prudent
device. no further requests for time. reason to this.
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