29 U.S.C. § 2007 : US Code - Section 2007: Restrictions on use of exemptions

Search 29 U.S.C. § 2007 : US Code - Section 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 examinee
The 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 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 -
(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 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 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 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 examiners
The 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) 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 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
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.