29 U.S. Code § 2007 - Restrictions on use of exemptions

§ 2007.
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 2006 of this title 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, the exemption 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 described in paragraph (1) is taken against an employee or prospective employee.

(b) Rights of examineeThe exemptions provided under subsections (d), (e), and (f) of section 2006 of this title shall not apply unless the requirements described in the following paragraphs are met:
(1) All phasesThroughout 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—
(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 phaseDuring 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 characteristics 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 purposes of an adverse employment action described in subsection (a) of this section,
(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 chapter, and
(v)
of the legal rights and remedies of the employer under this chapter (including the rights of the employer under section 2008(c)(2) of this title); 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 question relevant during the test that was not presented in writing for review to such examinee before the test.

(4) Post-test phaseBefore 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 along 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 examinersThe exemptions provided under subsections (d), (e), and (f) of section 2006 of this title shall not apply unless the individual who conducts the polygraph test satisfies the requirements under the following paragraphs:
(1) QualificationsThe 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 equivalent amount of professional liability coverage.
(2) RequirementsThe 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 objectives of the test, and
(iii)
that does not include 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.

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29 CFR - Labor

29 CFR Part 801 - APPLICATION OF THE EMPLOYEE POLYGRAPH PROTECTION ACT OF 1988

 

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