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1993-10-10
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Section 2007. Restriction on use of exemptions
(a) Test as basis for adverse employment action.
(1) Under ongoing investigations exemption. Except as
provided under subsection (d) of section 2006(d) shall not apply
if an employee is discharged, disciplined, denied employment or
promotion, or otherwise discriminated against in any manner on
the basis of the analysis of a polygraph test chart or the
refusal to take a polygraph test, without additional supporting
evidence. The evidence required by such subsection may serve as
additional supporting evidence.
(2) Under other exemptions. In the case of an exemption
described in subsection (e) or (f) of such section (2006(e) or
(f)) the exemption shall not apply if the results of an analysis
of a polygraph test chart or the refusal to take a polygraph test
is used, as the sole basis upon which an adverse employment
action described in paragraph (1) is taken against an employee or
prospective employee.
(b) Rights of examinee. The exemptions provided under
subsections (d), (e) and (f) of section 2006 (d)-(f) shall not
apply unless the requirements 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, to needlessly intrude on such examinee;
(C) the examinee is not asked any questions
concerning--
(i) religious beliefs or affiliations,
(ii) beliefs or opinions regarding racial matters,
(iii) political beliefs or affiliations,
(iv) any matter relating to sexual behavior; and
(v) beliefs, affiliations, opinions, or lawful
activities regarding unions or labor organizations; and
(D) the examiner does not conduct the test if there is
sufficient written evidence by a physician that the examinee is
suffering from a medical or psychological condition or undergoing
treatment that might cause abnormal responses during the actual
testing phase.
(2) Pretest phase. During the pretest phase, the prospective
examinee--
(A) is provided with reasonable written notice of e
date, time, and location of the test, and of such examinee's
right to obtain and consult with legal counsel or an employee
representative before each phase of the test;
(B) is informed in writing of the nature and
characteristics of the test and of the instruments involved;
(C) is informed, in writing--
(i) whether the testing area contains a two-way
mirror, a camera, or any other device through which the test can
be observed,
(ii) whether any other device, including any
device for recording or monitoring the test, will be used, or
(iii) that the employer or the examinee may (with
mutual knowledge) make a recording of the test;
(D) is read and signs a written notice informing such
examinee--
(i) that the examinee cannot be required to take
the test as a condition of employment,
(ii) that any statement made during the test may
constitute additional supporting evidence for the purposes of an
adverse employment action as 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(c); and
(E) is provided an opportunity to review all questions to be
asked during the test and is informed of the right to terminate
the test at any time.
(3) Actual testing phase. During the actual testing phase,
the examiner does not ask such examinee any questions 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
rendered as a result of the test, and
(ii) a copy of the questions asked during the test
together with the corresponding charted responses.
(5) Maximum number and minimum duration of tests. The
examiner shall not conduct and complete more than five polygraph
tests on a calendar day on which the test is given, and shall not
conduct any such test for less than a 90-minute duration.
(c) Qualifications and requirements of examiners. The exemptions
provided under subsections (d), (e), and (f) of section 2006(d)-
(f) 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 the
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
equivalent 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 admission, information, case facts, and interpretation of e
charts relevant to the purpose and stated objectives of the test,
and
(iii) that does not contain any recommendation
concerning the employment of the examinee; and
(B) maintains all opinions, reports, charts, written
questions, lists, and other records relating to the test for a
minimum period of 3 years after administration of the test.
Section 2008. 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
(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) Disclosure by employer. An employer (other than an
employer described in subsection (a), (b) and (c) of Section
2006(a), (b) or (c) 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.
Section 2009. Effect on other law or regulations
Except as provided in subsection 2006 (a)-(c) this Act shall not
preempt any provision of 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.