29 C.F.R. Subpart C—Restrictions on Polygraph Usage Under Exemptions
Title 29 - Labor
(a) Section 8(a) (1) of the Act provides that the limited exemption in section 7(d) of the Act and §801.12 of this part for ongoing investigations shall not apply if an employer discharges, disciplines, denies employment or promotion or otherwise discriminates in any manner against a current employee based upon the analysis of a polygraph test chart or the refusal to take a polygraph test, without additional supporting evidence. (b) “Additional supporting evidence”, for purposes of section 8(a) of the Act, includes, but is not limited to, the following: (1)(i) Evidence indicating that the employee had access to the missing or damaged property that is the subject of an ongoing investigation; and (ii) Evidence leading to the employer's reasonable suspicion that the employee was involved in the incident or activity under investigation; or (2) Admissions or statements made by an employee before, during or following a polygraph examination. (c) Analysis of a polygraph test chart or refusal to take a polygraph test may not serve as a basis for adverse employment action, even with additional supporting evidence, unless the employer observes all the requirements of sections 7(d) and 8(b) of the Act, as described in §§801.12, 801.22, 801.23, 801.24, and 801.25 of this part. (a) Section 8(a) (2) of the Act provides that the security service exemption in section 7(e) of the Act and §801.14 of this part and the controlled substance exemption in section 7(f) of the Act and §801.13 of this part shall not apply if an employer discharges, disciplines, denies employment or promotion, or otherwise discriminates in any manner against a current employee or prospective employee based solely on the analysis of a polygraph test chart or the refusal to take a polygraph test. (b) Analysis of a polygraph test chart or refusal to take a polygraph test may serve as one basis for adverse employment actions of the type described in paragraph (a) of this section, provided that the adverse action was also based on another bona fide reason, with supporting evidence therefor. For example, traditional factors such as prior employment experience, education, job performance, etc. may be used as a basis for employment decisions. Employment decisions based on admissions or statements made by an employee or prospective employee before, during or following a polygraph examination may, likewise, serve as a basis for such decisions. (c) Analysis of a polygraph test chart or the refusal to take a polygraph test may not serve as a basis for adverse employment action, even with another legitimate basis for such action, unless the employer observes all the requirements of section 7 (e) or (f) of the Act, as appropriate, and section 8(b) of the Act, as described in §§801.13, 801.14, 801.22, 801.23, 801.24, and 801.25 of this part. (a) Pursuant to section 8(b) of the Act, the limited exemption in section 7(d) of the Act for ongoing investigations, and the security service and controlled substance exemptions in 7(e) and (f) of the Act (described in §801.12, 801.13, and 801.14 of this part) shall not apply unless all of the requirements set forth in this section and §§801.23 through 801.25 of this part are met. (b) During all phases of the polygraph testing the person being examined has the following rights: (1) The examinee may terminate the test at any time. (2) The examinee may not be asked any questions in a degrading or unnecessarily intrusive manner. (3) The examinee may not be asked any questions dealing with: (i) Religious beliefs or affiliations; (ii) Beliefs or opinions regarding racial matters; (iii) Political beliefs or affiliations; (iv) Sexual preferences or behavior; or (v) Beliefs, affiliations, opinions, or lawful activities concerning unions or labor organizations. (4) The examinee may not be subjected to a test when there is sufficient written evidence by a physician that the examinee is suffering from any medical or psychological condition or undergoing any treatment that might cause abnormal responses during the actual testing phase. “Sufficient written evidence” shall constitute, at a minimum, a statement by a physician specifically describing the examinee's medical or psychological condition or treatment and the basis for the physician's opinion that the condition or treatment might result in such abnormal responses. (5) An employee or prospective employee who exercises the right to terminate the test, or who for medical reasons with sufficient supporting evidence is not administered the test, shall be subject to adverse employment action only on the same basis as one who refuses to take a polygraph test, as described in §§801.20 and 801.21 of this part. (c) Any polygraph examination shall consist of one or more pretest phases, actual testing phases, and post-test phases, which must be conducted in accordance with the rights of examinees described in §§801.23 through 801.25 of this part. (a) The pretest phase consists of the questioning and other preparation of the prospective examinee before the actual use of the polygraph instrument. During the initial pretest phase, the examinee must be: (1) Provided with written notice, in a language understood by the examinee, as to when and where the examination will take place and that the examinee has the right to consult with counsel or an employee representative before each phase of the test. Such notice shall be received by the examinee at least forty-eight hours, excluding weekend days and holidays, before the time of the examination, except that a prospective employee may, at the employee's option, give written consent to administration of a test anytime within 48 hours but no earlier than 24 hours after receipt of the written notice. The written notice or proof of service must set forth the time and date of receipt by the employee or prospective employee and be verified by his or her signature. The purpose of this requirement is to provide a sufficient opportunity prior to the examination for the examinee to consult with counsel or an employee representative. Provision shall also be made for a convenient place on the premises where the examination will take place at which the examinee may consult privately with an attorney or an employee representative before each phase of the test. The attorney or representative may be excluded from the room where the examination is administered during the actual testing phase. (2) Informed orally and in writing of the nature and characteristics of the polygraph instrument and examination, including an explanation of the physical operation of the polygraph instrument and the procedure used during the examination. (3) Provided with a written notice prior to the testing phase, in a language understood by the examinee, which shall be read to and signed by the examinee. Use of appendix A to this part, if properly completed, will constitute compliance with the contents of the notice requirement of this paragraph. If a format other than in appendix A is used, it must contain at least the following information: (i) Whether or not the polygraph examination area contains a two-way mirror, a camera, or other device through which the examinee may be observed; (ii) Whether or not any other device, such as those used in conversation or recording will be used during the examination; (iii) That both the examinee and the employer have the right, with the other's knowledge, to make a recording of the entire examination; (iv) That the examinee has the right to terminate the test at any time; (v) That the examinee has the right, and will be given the opportunity, to review all questions to be asked during the test; (vi) That the examinee may not be asked questions in a manner which degrades, or needlessly intrudes; (vii) That the examinee may not be asked any questions concerning religious beliefs or opinions; beliefs regarding racial matters; political beliefs or affiliations; matters relating to sexual behavior; beliefs, affiliations, opinions, or lawful activities regarding unions or labor organizations; (viii) That the test may not be conducted 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 examination; (ix) That the test is not and cannot be required as a condition of employment; (x) That the employer may not discharge, dismiss, discipline, deny employment or promotion, or otherwise discriminate against the examinee based on the analysis of a polygraph test, or based on the examinee's refusal to take such a test, without additional evidence which would support such action; (xi)(A) In connection with an ongoing investigation, that the additional evidence required for the employer to take adverse action against the examinee, including termination, may be evidence that the examinee had access to the property that is the subject of the investigation, together with evidence supporting the employer's reasonable suspicion that the examinee was involved in the incident or activity under investigation; (B) That any statement made by the examinee before or during the test may serve as additional supporting evidence for an adverse employment action, as described in paragraph (a)(3)(x) of this section, and that any admission of criminal conduct by the examinee may be transmitted to an appropriate government law enforcement agency; (xii) That information acquired from a polygraph test may be disclosed by the examiner or by the employer only: (A) To the examinee or any other person specifically designated in writing by the examinee to receive such information; (B) To the employer that requested the test; (C) To a court, governmental agency, arbitrator, or mediator pursuant to a court order; (D) To a U.S. Department of Labor official when specifically designated in writing by the examinee to receive such information; (E) By the employer, to an appropriate governmental agency without a court order where, and only insofar as, the information disclosed is an admission of criminal conduct; (xiii) That if any of the examinee's rights or protections under the law are violated, the examinee has the right to file a complaint with the Wage and Hour Division of the U.S. Department of Labor, or to take action in court against the employer. Employers who violate this law are liable to the affected examinee, who may recover such legal or equitable relief as may be appropriate, including, but not limited to, employment, reinstatement, and promotion, payment of lost wages and benefits, and reasonable costs, including attorney's fees. The Secretary of Labor may also bring action to obtain compliance with the Act, and may assess civil money penalties against the employer; (xiv) That the examinee has the right to obtain and consult with legal counsel or other representative before each phase of the test, although the legal counsel or representative may be excluded from the room where the test is administered during the actual testing phase. (xv) That the employee's rights under the Act may not be waived, either voluntarily or involuntarily, by contract or otherwise, except as part of a written settlement to a pending action or complaint under the Act, agreed to and signed by the parties. (b) During the initial or any subsequent pretest phases, the examinee must be given the opportunity, prior to the actual testing phase, to review all questions in writing that the examiner will ask during each testing phase. Such questions may be presented at any point in time prior to the testing phase. (a) The actual testing phase refers to that time during which the examiner administers the examination by using a polygraph instrument with respect to the examinee and then analyzes the charts derived from the test. Throughout the actual testing phase, the examiner shall not ask any question that was not presented in writing for review prior to the testing phase. An examiner may, however, recess the testing phase and return to the pre-test phase to review additional relevant questions with the examinee. In the case of an ongoing investigation, the examiner shall ensure that all relevant questions (as distinguished from technical baseline questions) pertain to the investigation. (b) No testing period subject to the provisions of the Act shall be less than ninety minutes in length. Such “test period” begins at the time that the examiner begins informing the examinee of the nature and characteristics of the examination and the instruments involved, as prescribed in section 8(b) (2)(B) of the Act and §801.23 (a)(2) of this part, and ends when the examiner completes the review of the test results with the examinee as provided in §801.25 of this part. The ninety-minute minimum duration shall not apply if the examinee voluntarily acts to terminate the test before the completion thereof, in which event the examiner may not render an opinion regarding the employee's truthfulness. (a) The post-test phase refers to any questioning or other communication with the examinee following the use of the polygraph instrument, including review of the results of the test with the examinee. Before any adverse employment action, the employer must: (1) Further interview the examinee on the basis of the test results; and (2) Give to the examinee a written copy of any opinions or conclusions rendered in response to the test, as well as the questions asked during the test, with the corresponding charted responses. The term “corresponding charted responses” refers to copies of the entire examination charts recording the employee's physiological responses, and not just the examiner's written report which describes the examinee's responses to the questions as “charted” by the instrument. (a) Section 8 (b) and (c) of the Act provides that the limited exemption in section 7(d) of the Act for ongoing investigations, and the security service and controlled substances exemptions in section 7 (e) and (f) of the Act, shall not apply unless the person conducting the polygraph examination meets specified qualifications and requirements. (b) An examiner must meet the following qualifications: (1) Have a valid current license, if required by the State in which the test is to be conducted; and (2) Carry a minimum bond of $50,000 provided by a surety incorporated under the laws of the United States or of any State, which may under those laws guarantee the fidelity of persons holding positions of trust, or carry an equivalent amount of professional liability coverage. (c) An examiner must also, with respect to examinees identified by the employer pursuant to §801.30(c) of this part: (1) Observe all rights of examinees, as set out in §§801.22, 801.23, 801.24, and 801.25 of this part; (2) Administer no more than five polygraph examinations in any one calendar day on which a test or tests subject to the provisions of EPPA are administered, not counting those instances where an examinee voluntarily terminates an examination prior to the actual testing phase; (3) Administer no polygraph examination subject to the provisions of the Act which is less than ninety minutes in duration, as described in §801.24(b) of this part; (4) Render any opinion or conclusion regarding truthfulness or deception in writing. Such opinion or conclusion must be based solely on the polygraph test results. The written report shall not contain any information other than admissions, information, case facts, and interpretation of the charts relevant to the stated purpose of the polygraph test and shall not include any recommendation concerning the employment of the examinee; and (5) Maintain all opinions, reports, charts, written questions, lists, and other records relating to the test, including statements signed by examinees advising them of rights under the Act (as described in §801.23 (a)(3) of this part) and any electronic recordings of examinations, for at least three years from the date of the administration of the test. (See §801.30 of this part for recordkeeping requirements.)
Title 29: Labor
PART 801—APPLICATION OF THE EMPLOYEE POLYGRAPH PROTECTION ACT OF 1988
Subpart C—Restrictions on Polygraph Usage Under Exemptions
§ 801.20 Adverse employment action under ongoing investigation exemption.
§ 801.21 Adverse employment action under security service and controlled substance exemptions.
§ 801.22 Rights of examinee—general.
§ 801.23 Rights of examinee—pretest phase.
§ 801.24 Rights of examinee—actual testing phase.
§ 801.25 Rights of examinee—post-test phase.
§ 801.26 Qualifications of and requirements for examiners.
