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- /* We continue with the final sections of the Employee Polygraph
- Protection Act. */
-
- 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.
-
- /* Sections (1) and (2) require something other than a polygraph
- test to support an adverse decision. This is going to be a
- litigation breeder as employees will state that employers did
- not 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.
-
- /* The following sections state your rights when an employer
- seeks to have an employee take a polygraph test. */
-
- (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--
-
- /* Here are the rights specifically enumerated. */
-
- (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.
-
- /* After a test there are many requirements that an employer must
- follow- and here they are-- */
-
- (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
-
- /* Polygraph test information cannot be disclosed except to
- limited sets of individuals stated in this section. */
-
- (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
-
- /* If your union contract, or a local law is more restrictive,
- it will apply. This act sets the minimum standards. */
-
- 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.