29 USC 2007 - Restrictions on use of exemptions

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

§ 2007.

Restrictions on use of exemptions

(a)

Test as basis for adverse employment action

(1)

Under ongoing investigations exemption

(2)

Under other exemptions

(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),

(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

(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

(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.

(Pub. L. 100–347, § 8, June 27, 1988, 102 Stat. 650.)

cite as: 29 USC 2007