29 USC 2006 - Exemptions

U.S Code last checked for updates: Nov 22, 2024

§ 2006.

Exemptions

(a)

No application to governmental employers

(b)

National defense and security exemption

(1)

National defense

Nothing in this chapter shall be construed to prohibit the administration, by the Federal Government, in the performance of any counterintelligence function, of any lie detector test to—

(A)

any expert or consultant under contract to the Department of Defense or any employee of any contractor of such Department; or

(B)

any expert or consultant under contract with the Department of Energy in connection with the atomic energy defense activities of such Department or any employee of any contractor of such Department in connection with such activities.

(2)

Security

Nothing in this chapter shall be construed to prohibit the administration, by the Federal Government, in the performance of any intelligence or counterintelligence function, of any lie detector test to—

(A)

(i)

any individual employed by, assigned to, or detailed to, the National Security Agency, the Defense Intelligence Agency, the National Geospatial-Intelligence Agency, or the Central Intelligence Agency,

(ii)

any expert or consultant under contract to any such agency,

(iii)

any employee of a contractor to any such agency,

(iv)

any individual applying for a position in any such agency, or

(v)

any individual assigned to a space where sensitive cryptologic information is produced, processed, or stored for any such agency; or

(B)

any expert, or consultant (or employee of such expert or consultant) under contract with any Federal Government department, agency, or program whose duties involve access to information that has been classified at the level of top secret or designated as being within a special access program under section 4.2(a) of Executive Order 12356 (or a successor Executive order).

(c)

FBI contractors exemption

(d)

Limited exemption for ongoing investigations

Subject to sections 2007 and 2009 of this title, this chapter shall not prohibit an employer from requesting an employee to submit to a polygraph test if—

(1)

the test is administered in connection with an ongoing investigation involving economic loss or injury to the employer’s business, such as theft, embezzlement, misappropriation, or an act of unlawful industrial espionage or sabotage;

(2)

the employee had access to the property that is the subject of the investigation;

(3)

the employer has a reasonable suspicion that the employee was involved in the incident or activity under investigation; and

(4)

the employer executes a statement, provided to the examinee before the test, that—

(A)

sets forth with particularity the specific incident or activity being investigated and the basis for testing particular employees,

(B)

is signed by a person (other than a polygraph examiner) authorized to legally bind the employer,

(C)

is retained by the employer for at least 3 years, and

(D)

contains at a minimum—

(i)

an identification of the specific economic loss or injury to the business of the employer,

(ii)

a statement indicating that the employee had access to the property that is the subject of the investigation, and

(iii)

a statement describing the basis of the employer’s reasonable suspicion that the employee was involved in the incident or activity under investigation.

(e)

Exemption for security services

(1)

In general

Subject to paragraph (2) and sections 2007 and 2009 of this title, this chapter shall not prohibit the use of polygraph tests on prospective employees by any private employer whose primary business purpose consists of providing armored car personnel, personnel engaged in the design, installation, and maintenance of security alarm systems, or other uniformed or plainclothes security personnel and whose function includes protection of—

(A)

facilities, materials, or operations having a significant impact on the health or safety of any State or political subdivision thereof, or the national security of the United States, as determined under rules and regulations issued by the Secretary within 90 days after June 27, 1988, including—

(i)

facilities engaged in the production, transmission, or distribution of electric or nuclear power,

(ii)

public water supply facilities,

(iii)

shipments or storage of radioactive or other toxic waste materials, and

(iv)

public transportation, or

(B)

currency, negotiable securities, precious commodities or instruments, or proprietary information.

(2)

Access

(f)

Exemption for drug security, drug theft, or drug diversion investigations

(1)

In general

(2)

Access

The exemption provided under this subsection shall apply—

(A)

if the test is administered to a prospective employee who would have direct access to the manufacture, storage, distribution, or sale of any such controlled substance; or

(B)

in the case of a test administered to a current employee, if—

(i)

the test is administered in connection with an ongoing investigation of criminal or other misconduct involving, or potentially involving, loss or injury to the manufacture, distribution, or dispensing of any such controlled substance by such employer, and

(ii)

the employee had access to the person or property that is the subject of the investigation.

(Pub. L. 100–347, § 7, June 27, 1988, 102 Stat. 648; Pub. L. 103–359, title V, § 501(n), Oct. 14, 1994, 108 Stat. 3430; Pub. L. 104–201, div. A, title XI, § 1122(b)(3), Sept. 23, 1996, 110 Stat. 2687; Pub. L. 110–417, [div. A], title IX, § 931(b)(3), Oct. 14, 2008, 122 Stat. 4575.)

cite as: 29 USC 2006