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The Employee Protection Polygraph

28 U.S.C. 2001

Section 2001. Definitions- As used in this Act:

    (1) COMMERCE- The term "commerce" has the meaning provided by
section 3(b) of the Fair Labor Standards Act of 1938.

    (2) EMPLOYER- The term "employer" includes any person acting
directly or indirectly in the interest of an employer in relation
to an employee or prospective employee.

    (3) LIE DETECTOR- The term "lie detector" includes a
polygraph, a deceptoragraphy, voice stress analyzer, psychological
stress evaluator, or any other similar device (whether mechanical
or electrical) that is used, or the results of which are used,
for the purpose of rendering a diagnostic opinion regarding the
honesty or dishonesty of an individual.

    (4) POLYGRAPH. The term "polygraph" means an instrument that-
-

         (A) records continuously, visually, permanently, and
simultaneously changes in cardiovascular, respiratory, and
electrodermal patterns as minimum instrumentation standards; and

         (B) is used, or the results of which are used, for the
purpose of rendering a diagnostic opinion regarding the honesty
or dishonesty of an individual.

    (5) SECRETARY. The term "Secretary" means the Secretary of
Labor.

Section 2002. Prohibitions on lie detector use


Except as provided in sections 2006 and 2007, it shall be
unlawful for any employer engaging in or affecting interstate
commerce or in the production of goods for commerce--

    (1) directly or indirectly, to require, suggest or cause any
employee or prospective employee to take or submit to any lie
detector test;

    (2) to use, accept, refer to, or inquire concerning the
results of any lie detector test of any employee or prospective
employee;

    (3) to discharge, discipline, discriminate against in any
manner, or deny employment or promotion to, or threaten to take
any such action against--

         (A) any employee or prospective employee who refuses,
declines or fails to take or submit to any lie detector test, or

    (4) to discharge, discipline, discriminate against in any
manner, or deny employment or promotion to, or threaten to take
any such action against any employee or prospective employee
because--

         (A) such employee or prospective employee has filed any
complaint or instituted or caused to be instituted any proceeding
under or related to this 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
employee or another person, of any right afforded by this Act.

Section 2003. Notice of protection

    The Secretary shall prepare, have printed, and distribute a
notice setting forth excerpts from, or summaries of, the
pertinent provisions of this 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.

Section 2004. Authority of the Secretary

    (a) In General. The Secretary shall--

         (1) issue such rules and regulation as may be necessary
or appropriate to carry out this Act;

         (2) cooperate with regional, State, local, and other
agencies, and cooperate with and furnish technical assistance to
employers, labor organizations, and employment agencies to aid in
effectuating the purposes of this Act; and

         (3) make investigations and inspections and require the
keeping 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.

Section 2205. Enforcement provisions

    (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
subsection 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 with respect to civil
penalties assessed under subsection (a) of such section.

    (b) Injunctive actions by the Secretary. The Secretary nay
bring an action under this section to restrain violations of this
Act. The Solicitor of Labor may appear for and represent the
Secretary in any litigation brought under this Act. In any action
brought under this section, the district courts of the United
States shall have jurisdiction, for cause shown, to issue
temporary or permanent restraining orders and injunctions to
require compliance with this Act, including such legal or
equitable relief as may be appropriate, including but not limited
to, employment, reinstatement, promotion, and the payment of lost
wages and benefits.

    (c) Private civil actions.

         (1) Liability. An employer who violates this Act shall
be liable to the employee or prospective employee affect by such
violation. Such employer shall be liable for such legal or
equitable relief as may be appropriate, including, but not
limited to, employment, reinstatement, promotion, and the payment
of lost wages and benefits.

         (2) Court. An action to recover the liability
prescribed in paragraph (1) may be maintained against the
employer in any Federal or State court of competent jurisdiction
by an employee or prospective employee for or on behalf of such
employee, prospective employee, and other employees or
prospective employees similarly situated. No such action may be
commenced more than 3 years after the date of the alleged
violation.

         (3) Costs. The court, in its discretion, may allow the
prevailing party (other than the United States) reasonable costs,
including attorney's fees.


    (d) Waiver of rights prohibited. The rights and procedures
provided by this Act may not be waived by contract or otherwise,
unless such waiver is part of a written settlement agreement
agreed to and signed by the parties to the pending action or
complaint under this Act.

Section 2006. 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
construed to prohibit the administration, by the Federal
Government, in the performance of any counterintelligence
function, of any lie detector test to--

              (A) any expert or consultant under contract to the
Department of Defense of any employee of any contractor of such
Department; or

              (B) any expert or consultant under contract with
the Department of Energy in connection with the atomic energy
defense activities of such Department or any employee of any
contractor of such Department in connection with such activities.

         (2) Security. Nothing in this Act shall be construed to
prohibit the administration, by the Federal Government, in the
performance of any counterintelligence function, of any lie
detector test to--

    (A)(i) 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
Agency,

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

         (iv) any individual applying for a position in any such
agency, or

         (v) any individual assigned to a space where sensitive
cryptologic information is produced, processed, or stored for any
such agency; or

    (B) any expert, or consultant (or employee of such expert or
consultant) under contract with any Federal Government
department, agency, or program whose duties involve access to
information that has been classified at the level of top secret
or designated as being with 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
Government, in the performance of any counterintelligence
function, of any lie detector test to an employee of a contractor
of the Federal Bureau of Investigation of the Department of
Justice who is engaged in the performance of any work under the
contract with such Bureau.

    (d) Limited exception for ongoing investigations. Subject to
sections 2007 and 2009. 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 investigation involving economic loss or injury to the
employer's business, such as theft, embezzlement,
misappropriation, or an act of unlawful industrial espionage or
sabotage;

         (2) the employee has access to the property that is the
subject of the investigation;

         (3) the employer has a reasonable suspicion that the
employee was involved in the incident or activity under
investigation; and

         (4) the employer executes a statement, provided to the
examinee before the test, that--

              (A) sets forth with particularity the specific
incident or activity being investigated and the basis for testing
particular employees,

              (B) is singed by a person (other than a polygraph
examiner) authorized to legally bind the employer,

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

              (D) contains at a minimum--

                   (i) an identification of the specific economic
loss or injury to the business of the employer,

                   (ii) a statement indicating that the employee
had access to the property that is the subject of the
investigation, and

                   (iii) a statement describing the basis of the
employer's reasonable suspicion that the employee was involved in
the incident or activity under investigation.

    (e) Exemption for security services.

         (1) In general. Subject to paragraph 2 and sections 2007
and 2209, this Act shall not prohibit the use of polygraph tests
on prospective employees by any private employer whose primary
business purpose consists of providing armored car personnel,
personnel engaged in the design, installation, and maintenance of
security alarm systems, or other uniformed or plainclothes
security personnel and whose function includes protection of--

         (A) facilities, materials, or operations having a
significant impact on the health or safety of any State or
political subdivision thereof, or the national security of the
United States, as determined under rules and regulations issued
by the Secretary within 90 days after the date of the enactment
of this Act, including--

              (i) facilities engaged in the production,
transmission, or distribution of electric or nuclear power,

              (ii) public water supply facilities,

              (iii) shipments or storage or radioactive or other
toxic waste materials, and

              (iv) public transportation, or

         (B) currency, negotiable securities, precious
commodities or instruments, or proprietary information.

    (2) Access. The exemption provided under this subsection
shall not apply if the test is administered to a prospective
employee who would not be employed to protect facilities,
materials, operations, or assets referred to in paragraph (1).

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

         (1) In general. Subject to paragraph (2) and sections
2007 and 2009, 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, III, or
IV of section 202 of the Controlled Substances Act.

         (2) Access. The exemption provided under this subsection
shall apply--

              (A) if the test is administered to a prospective
employee who would have direct access to the manufacture,
storage, distribution, or sale of any such controlled substance;
or

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

                (i) the test is administered in connection with
an ongoing investigation of criminal or other misconduct
involving, or potentially involving, loss or injury to the
manufacturer, distribution, or dispensing of any such controlled
substance by such employer, and

                (ii) the employee has access to the person or
property that is the subject of the investigation.