EMPLOYEE POLYGRAPH PROTECTION ACT OF 1988

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP89T00234R000200270002-5
• Release Decision: RIFPUB
• Original Classification: K
• Document Page Count: 9
• Document Creation Date: December 27, 2016
• Document Release Date: January 2, 2013
• Sequence Number: 2
• Publication Date: June 27, 1988
• Content Type: MISC

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PUBLIC LAW 100-347-JUNE 27, 1988
EMPLOYEE POLYGRAPH PROTECTION
ACT'OF 1988
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1 102 STAT. 646 ? `PUBLIC LAW 100-347'-JUNE 27, 1988
Public Law 100-347
100th Congress
June 27, 1988 To prevent the denial of employment opportunities by prohibiting the use of lie
[H.R. 1212] detectors by employers involved in or affecting interstate commerce.
Be it enacted by the Senate and House of Representatives of the
Employee United States of America in Congress assembled,
Polygraph
Protection Act SECTION 1. SHORT TITLE.
of 1988.
29 USC 2001 This Act may be cited as the "Employee Polygraph Protection Act
note. of 1988".
29 USC 2001. SEC. 2. DEFINITIONS.
As used in this Act:
(1) COMMERCE.-The term "commerce" has the meaning pro-
vided by section 3(b) of the Fair Labor Standards Act of 1938 (29
U.S.C. 203(b)).
(2) EMPLOYER.-The term "employer" includes any person
acting directly or indirectly in the interest of an employer in
relation to an employee or prospective employee:'..
(3) LIE DETECTOR.-The term "lie detector" includes a poly-
graph, deceptograph, voice stress analyzer, psychological stress
evaluator, or any other similar device (whether mechanical or
electrical) that is used, or the results of which are used, for the
purpose of rendering a diagnostic opinion regarding the honesty
or dishonesty of an individual.
(4) POLYGRAPH.-The term "polygraph" means an instrument
that-
(A) records continuously, visually, permanently, and si-
multaneously changes in cardiovascular, respiratory, and
electrodermal patterns as minimum instrumentation stand-
ards; and
(B) is used, or the results of which are used, for the
purpose of rendering a diagnostic opinion regarding the
honesty or dishonesty of an individual.
(5) SECRETARY.-The term "Secretary" means the Secretary of
Labor.
29 USC 2002. SEC. 3. PROHIBITIONS ON LIE DETECTOR USE.
Except as provided in sections 7 and 8, it shall be unlawful for any
employer engaged in or affecting commerce or in the production of
goods for commerce-
(1) directly or indirectly, to require, request, suggest, or cause
any employee or prospective employee to take or submit to any
lie detector test;
(2) to use, accept, refer to, or inquire concerning the results of
any lie detector test of any employee or prospective employee;
Discrimination, (3) to discharge, discipline, discriminate against in any
prohibition. manner, or deny employment or promotion to, or threaten to
take any such action against-
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YUliL1U LAW `1UU-es4'1-JUNE 27, 1988 102'STAT. 647
(A) -any employee or prospective employee who refuses,
declines, or fails to take or submit to any lie detector test,
or
(B) any employee or prospective employee on the basis of
the results of any lie detector test; or
(4) to discharge, discipline, discriminate against in any Discrimination,
manner, or deny employment or promotion to, or threaten to prohibition.
take any such action against, any employee or prospective
employee because-
(A) such employee or prospective employee .has filed any
complaint or instituted or caused to be instituted any
proceeding under or related to this Act,
(B), such employee or prospective employee has.testified
or is about to testify in any such proceeding, or
(C) of the exercise by such employee or prospective em-
ployee,: on behalf, of such employee or another person, of
any right afforded by this Act.
SEC. 4. NOTICE OF PROTECTION. 29 USC 2003.
The'Secretary shall prepare, have.printed, and distribute a notice
setting forth excerpts from, or .summaries of, the pertinent provi-
sions of this Act. Each employer, shall post and maintain such notice
in conspicuous places on its premises where notices to employees
and applicants to employment. are customarily posted.
SEC. S. AUTHORITY OF THE SECRETARY. 29 USC 2004.
(a) IN GENERAL.-The Secretary shall-
(1) issue such rules and regulations as may be necessary or Regulations.
appropriate to carry out this Act;
. (2) cooperate with regional, State, local, and other agencies, State and local
and cooperate with and furnish technical assistance to em- governments.
ployers, labor- organizations, and employment agencies .to aid in
effectuating the purposes of this Act; and
(3) make investigations .and inspections and require .the keep- Records.
ing of records necessary or appropriate for the administration of
this Act.
(b) SUBPOENA AUTHORITY.-For the purpose of any hearing 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 and 50).
SEC. 6. ENFORCEMENT PROVISIONS. 29 USC 2005.
(a) CIVIL PENALTIES.-
(1) IN GENERAL.-Subject to paragraph (2), any employer who
violates any provision of this Act may be assessed a civil penalty
of not more than $10,000.
(2) DETERMINATION OF AMOUNT.-In determining the amount
of any penalty under paragraph (1), the, Secretary shall take
into account the previous record of the person in terms of
compliance with this . Act and the gravity of the violation.
(3) COLLECTION.-Any civil penalty assessed under this subsec-
tion shall be collected in the same manner as is required by
subsections (b) through (e) of section 503 of the Migrant and
Seasonal Agricultural Worker Protection Act (29 U.S.C. 1853)
with respect to civil penalties assessed under subsection (a) of
such section.
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102 STAT. 648 PUBLIC LAW 100-347-JUNE 27, 1988
(b) INJUNCTIVE ACTIONS BY THE SECRETARY.-The Secretary may
bring an action under this section to restrain violations of this Act.
The Solicitor of Labor may appear for and represent the Secretary
Courts, U.S. in any litigation brought under this Act. In any action brought
Wages. under this section, the district courts of the United States shall have
jurisdiction, for cause shown, to issue temporary or permanent
restraining orders and injunctions to require compliance with this
Act, including such legal or equitable relief incident thereto as may
be appropriate, including, but not limited to, employment, reinstate-
ment, promotion, and the payment of lost wages and benefits.
(c) PRIVATE CIVIL ACTIoNs.-
(1) LIABnn r.-An employer who violates this Act shall be
liable to the employee or prospective employee affected by such
Wages. violation. Such employer shall be liable for such legal or equi-
table relief as may be appropriate, including, but not limited to,
employment, reinstatement, promotion, and the payment of lost
wages and benefits.
(2) CouRT.-An action to recover the liability prescribed in
paragraph (1) may be maintained against the employer in any
Federal or State court of competent jurisdiction by an employee
or prospective employee for or on behalf of such employee,
prospective employee, and other employees or prospective
employees similarly situated. No such action may be com-
menced more than 3 years after the date of the alleged
violation.
Courts, U.S. (3) CosTs.-The court, in its discretion, may allow the prevail-
ing party (other than the United States) reasonable costs,
including attorney's fees.
(d) WAIVER OF RIGHTS PROHIBITED.-The rights and procedures
provided by this Act may not be waived by contract or otherwise,
unless such waiver is part of a written settlement agreed to and
signed by the parties to the pending action or complaint under this
Act.
29 USC 2006. SEC. 7. EXEMPTIONS.
(a) No APPLICATION TO GOVERNMENTAL EMPLOYERS.-This Act
shall not apply with respect to the United States Government, any
State or local government, or any political subdivision of a State or
local government.
(b) NATIONAL DEFENSE AND SECURITY EXEMPTION.-
(1) NATIONAL DEFENSE.-Nothing in this Act shall be con-
strued to prohibit the administration, by the Federal Govern-
ment, in the performance of any counterintelligence function, of
any lie detector test to-
(A) any expert or consultant under contract to the
Department of Defense or any employee of any contractor
of such Department; or
(B) any expert or consultant under contract with the
Department of Energy in connection with the atomic
energy defense activities of such Department or any em-
ployee of any contractor of such Department in connection
with such activities.
(2) SEcuRITY.-Nothing in this Act shall be construed to
prohibit the administration, by the Federal Government, in the
performance of any intelligence or counterintelligence function,
of any lie detector test to-
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V LL1V , ,n .. L?U-uY . -JUNE 27, 1988 102 STAT. 649
(AXi) any individual employed by, assigned to, or detailed
to, the National Security Agency, the Defense Intelligence
Agency, or the Central Intelligence Agency,
(ii) any expert or consultant under contract to any such Contracts.
agency,
(iii) any employee of a contractor to any such agency,
(iv) any individual applying for a position in any such
agency, or
(v) any individual assigned. to a space where sensitive Classified
cryptologic information is produced, processed, or stored for information.
any such agency; or
(B) any expert, or consultant (or employee of such expert Contracts.
or consultant) under contract with any Federal Govern- Classified
ment department, agency, or program whose duties involve information.
access to information that has been classified at the level of
top secret or designated as being within a special access
program under section 4.2(a) of Executive Order 12356 (or a
successor Executive order).
(c) FBI CONTRACTORS EXEMPTION.-Nothing in this Act shall be
construed to prohibit the administration, by the Federal Govern-
ment, in the performance of any counterintelligence function, of any
lie detector test to an employee of a contractor of the Federal
Bureau of Investigation of the Department of Justice who is engaged
in the performance of any work under the contract with such
Bureau.
(d) LIMITED EXEMPTION FOR ONGOING INVESTIGATIONS.-Subject to
sections 8 and 10, this Act shall not prohibit an employer from
requesting an employee to submit to a polygraph test if-
(1) the test is administered in connection with an ongoing Fraud.
investigation involving economic loss or injury to the em- Espionage.
ployer's business, such as theft, embezzlement, misappropria-
tion, or an act of unlawful industrial espionage or sabotage;
(2) the employee had access to the property that is the subject
of the investigation;
(3) the employer has a reasonable suspicion that the employee
was involved in the incident or activity under investigation; and
(4) the employer executes a statement, provided to the exam-
inee before the test, that-
(A) sets forth with particularity the specific incident or
activity being investigated and the basis for testing particu-
lar employees,
(B) is -signed by a person (other than a polygraph exam-
iner) authorized to legally bind the employer,
(C) is retained by the employer for at least 3 years, and
(D) contains at a minimum-
(i) an identification of the specific economic loss or
injury to the business of the employer,
(ii) a statement indicating that the employee had
access to the property that is the subject of the inves-
tigation, and
(iii) a statement describing the basis of the em-
ployer's reasonable suspicion that the. employee was
involved in the incident or activity under investigation.
(e) EXEMPTION FOR SECURITY SERVICES.-
(1) IN GENERAL.-Subject to paragraph (2) and sections 8 and
10, this Act shall not prohibit the use of polygraph tests on
prospective employees by any private employer whose primary
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1UG b'1'A'1'. b5U ruliLiu LAW 100-347-JUNE 27, 1988
business purpose consists of providing armored car personnel,
personnel engaged in the design, installation, and maintenance
of security alarm systems, or other uniformed or plainclothes
security personnel and whose function includes protection of-
Public health (A) facilities, materials, or operations having a significant
and safety. impact on the health or safety of any State or political
Defense and subdivision thereof, or the national security of the United
national
security States, as determined under rules and regulations issued by
S.
State and local the Secretary within 90 days after the date of the enact-
governments. ment of this Act, including-
Energy. (i) facilities engaged in the production, transmission,
or distribution of electric or nuclear power,
Water. (ii) public water supply facilities,
Hazardous (iii) shipments or storage of radioactive or other toxic
materials. waste materials, and
Transportation. (iv) public transportation, or
Securities. (B) currency, negotiable securities, precious commodities
or instruments, or proprietary information.
(2) AccEss.-The exemption provided under this subsection
shall not apply if the test is administered to a prospective
employee who would not be employed to protect facilities, mate-
rials, operations, or assets referred to in paragraph (1).
(f) EXEMPTION FOR DRUG SECURITY, DRUG THEFT, OR DRUG DIVER-
SION INVESTIGATIONS.-
(1) IN GENERAL..-Subject to paragraph (2) and sections 8 and
10, this Act shall not prohibit the use of a polygraph test by any
employer authorized to manufacture, distribute, or dispense a
controlled substance listed in schedule I, II, III, or IV of section
202 of the Controlled Substances Act (21 U.S.C. 812).
(2) AccESS.-The exemption provided under this subsection
shall apply-
(A) _ if the test is administered to a prospective employee
who would have direct access to the manufacture, storage,
distribution, or sale of any such controlled substance; or
(B) in the case of a test administered to a current
employee, if-
(i) the test is administered in connection with an
ongoing investigation of criminal or other misconduct
involving, or potentially involving, loss or I' ury to the
manufacture, distribution, or dispensing of any such
controlled substance by such employer, and
(ii) the employee had access to the person or property
that is the subject of the investigation.
29 USC 2007. SEC. 8. RESTRICTIONS ON USE OF EXEMPTIONS.
(a) TEST As BASIS FOR ADVERSE EMPLOYMENT ACTION.-
(1) UNDER ONGOING INVESTIGATIONS EXEMPTION.-Except as
provided in paragraph (2), the exemption under subsection (d) of
section 7 shall not apply if an employee is discharged, dis-
ciplined, denied employment or promotion, or otherwise
discriminated against in any manner on the basis of the analy-
sis of a polygraph test chart or the refusal to take a polygraph
test, without additional supporting evidence. The evidence re-
quired by such subsection may serve as additional supporting
evidence.
(2) UNDER OTHER EXEMPTIONS.-In .the case of an exemption
described in subsection (e) or (f) of such section, the exemption
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t JUNE 27, 1988 102 STAT. 651
VDLlV Ll"1 vv lvv-. ?1-
shall not apply if the results of an analysis of a polygraph test
chart are used, or the refusal to take a polygraph test is used, as
the sole basis upon which an.adverse employment action de-
scribed in paragraph (1) is taken against an employee or
prospective employee.
(b) RIGHTS OF EXAMINEE.-The exemptions provided under subsec-
tions (d), (e), and (0 of section 7 shall not apply unless the require-
ments described in the following paragraphs are met:
(1) ALL PHASES.-Throughout all phases of the test-
(A) the examinee shall be permitted to terminate the test
at any time;
(B) the examinee is not asked questions in a manner
designed to degrade, or needlessly intrude on, such
examinee;
(C) the examinee is not asked any question concerning- Discrimination,
(i) religious beliefs or affiliations, prohibition.
(ii) beliefs or opinions regarding racial matters,
(iii) political beliefs or affiliations,
(iv) any matter relating to sexual behavior; and
(v) beliefs, affiliations, opinions, or lawful activities
regarding unions or labor organizations; and
(D) the examiner does not conduct the test if there is Health and
sufficient written evidence by a physician that the exam- medical care.
inee is suffering from a medical or psychological condition
or undergoing treatment that might cause abnormal re-
sponses during the actual testing phase.
(2) PRETEST PHASE.-During the pretest phase, the. prospective
examinee-
(A) is provided with reasonable written notice of the date,
time, and location of the test, and of such examinee's right
to obtain and consult with legal counsel or an employee
representative before each phase of the test;
(B) is informed in writing of the nature and characteris-
tics of the tests and of the instruments involved;
(C) is informed, in writing-
(i) whether the testing area contains a two-way
mirror, a camera, or any other device through which
the test can be observed,
(ii) whether any other device, including any device
for recording or monitoring the test, will be used, or
(iii) that the employer or the examinee may (with
mutual knowledge) make a recording of the test;
(D) is read and signs a written notice informing such
examinee-
(i) that the examinee cannot be required to take the
test as a condition of employment,
(ii) that any statement made during the test may
constitute additional supporting evidence for the pur-
` poses of an adverse employment action described in
subsection (a),
(iii) of the limitations imposed under this section,
(iv) of the legal rights and remedies available to the
examinee if the polygraph test is not conducted in
accordance with this Act, and
(v) of the legal rights and remedies of the employer
under this Act (including the rights of the employer
under section 9(cX2)); and
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1V6 -7.1Y11. VOL runi,iil, LAW 100-347-JUNE 27, 1988
(E) is provided an opportunity to review all questions to
be' asked during the test and is informed of the right to
terminate the test at any time.
(3) ACTUAL TESTING PHASE.-During the actual testing phase,
the examiner does not ask such examinee any question relevant
during the test that was not presented in writing for review to
such examinee before the test.
(4) POST-TEST PHASE.-Before any adverse employment action,
the employer shall-
(A) further interview the examinee on the basis of the
results of the test; and
(B) provide the examinee with-
(i) a written copy of any opinion or conclusion ren-
dered as a result of the test, and
(ii) a copy of the questions asked during the test
along with .the corresponding charted responses.
(5) MAXIMUM NUMBER AND 'MINIMUM DURATION OF TESTS.-The
examiner shall not conduct and complete more than five poly-
graph tests on a calendar day on which the test is given, and
shall not conduct any such test for less than a 90-minute
duration.
(C) QUALIFICATIONS AND REQUIREMENTS OF EXAMINERS.-The
exemptions provided under subsections (d), (e), and (f) of section 7
shall not apply unless the individual who conducts the polygraph
test satisfies the requirements under the following paragraphs:
(1) QUALIFICATIONS.-The examiner-
(A) has a valid and current license granted by licensing
and regulatory authorities in' the State in which the test is
to be conducted, if so required by the State; and
'(B) maintains a minimum of a $50,000 bond or an equiva-
lent amount of professional liability coverage.
(2)-REQUIREMENTS.-The examiner-
(A) renders -any opinion or conclusion regarding the
test-
(i) in writing and solely on the basis, of an analysis of
polygraph test charts,
(ii) that does not contain information other than
admissions, information, case facts, and interpretation
of the charts relevant to the purpose and stated objec-
tives of the test, and
(iii) that does not include any recommendation
concerning the employment of the examinee; and
Records. (B) maintains all opinions, reports, charts, written ques-
tions, - lists, and .other records relating to the test for a
minimum period of 3 years after administration of the test.
29 USC 2008. SEC. 9. DISCLOSURE OF INFORMATION.
(a) IN GENERAL.-A. person, other than the examinee, may not
disclose information 'obtained during a polygraph test, except as
provided in this section.
(b) PERMITTED DISCLOSURES.-A. polygraph examiner may disclose
information acquired from a polygraph test only to-
(1) the examinee or any. other person specifically designated
in-writing by the examinee;
(2) the employer that requested-the test; or
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(3) any court, governmental agency, arbitrator, or mediator,
in accordance with due process of law, pursuant to an order
from a court of competent jurisdiction.
(c) Died osunE BY EMPLOYER.-An employer (other than an em-
ployer described in subsection (a), (b), or (c) of section 7) for whom a
polygraph test is conducted may disclose information from the test
only to-
(1) a person in accordance with subsection (b); or
(2) a governmental agency, but only insofar as the disclosed
information is an admission of criminal conduct.
SEC. 10. EFFECT ON OTHER LAW AND AGREEMENTS. 29 USC 2009.
Except as provided in subsections (a), (b), and (c) of section 7, this
Act shall not preempt any provision of any State or local law or of
any negotiated collective bargaining agreement that prohibits lie
detector tests or is more restrictive with respect to lie detector tests
than any provision of this Act.
SEC. 11. EFFECTIVE DATE.
(a) IN GENERAL..-Except as provided in subsection (b), this Act
shall become effective 6 months after the date of enactment of this
Act.
(b) REGULATIoxs.-Not later than 90 days after the date of enact-
ment of this Act, the Secretary shall issue such rules and regula-
tions as may be necessary or appropriate to carry out this Act.
LEGISLATIVE HISTORY-H.R. 1212 (S. 1904):
HOUSE REPORTS: No. 100-208 (Comm. on Education and Labor) and No. 100-659
(Comm. of Conference).
SENATE REPORTS: No. 100-284 accompanying S. 1904 (Comm. on Labor and Human
Resources).
CONGRESSIONAL RECORD:
Vol. 133 (1987): Nov. 4, considered and passed House.
Vol. 134 (1988): Mar. 1, 2, S. 1904 considered in Senate.
Mar. 3, H.R. 1212 considered and passed Senate, amended, in
lieu of S. 1904.
June 1, House agreed to conference report.
June 9, Senate agreed to conference report.
WEEKLY COMPILATION OF PRESIDENTIAL DOCUMENTS, Vol. 24 (1988):
June 27, Presidential statement.
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29 USC 2001
note.