Advanced Criminal Investigations and Intelligence Operations
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(2) To use, accept, refer to, or inquire concerning the results of any lie detector test of any employee or prospective employee
(3) To discharge, discipline, discriminate against in any manner,
deny employment or promotion to, or threaten to take any such
action against
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(A) Any employee or prospective employee who refuses, declines,
or fails to take or submit to any lie detector test
(B) Any employee or prospective employee on the basis of the
results of any lie detector test
(4) To discharge, discipline, discriminate against in any manner, deny employment or promotion to, or threaten to take any such action
against any employee or prospective employee because
(A) Such employee or prospective employee has filed any com-
plaint or instituted or caused to be instituted any proceeding
under or related to this chapter
(B) Such employee or prospective employee has testified or is about
to testify in any such proceeding
(C) Of the exercise by such employee or prospective employee,
on behalf of such employee or another person, of any right
afforded by this chapter
§ 2003. Notice of Protection
The Secretary shall prepare, have printed, and distribute a notice setting forth excerpts from, or summaries of, the pertinent provisions of this chapter.
Each employer shall post and maintain such notice in conspicuous places on its premises where notices to employees and applicants to employment are
customarily posted.
§ 2004. Authority of Secretary
(a) In general
The Secretary shall
(1) Issue such rules and regulations as may be necessary or appropriate to carry out this chapter
(2) Cooperate with regional, state, local, and other agencies and
cooperate with and furnish technical assistance to employers,
labor organizations, and employment agencies to aid in effectu-
ating the purposes of this chapter
(3) Make investigations and inspections and require the keeping
of records necessary or appropriate for the administration of
this chapter
(b) Subpoena authority
For the purpose of any hearing or investigation under this chapter,
the Secretary shall have the authority contained in Sections 49 and 50
of Title 15.
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423
§ 2005. Enforcement Provisions
(a) Civil penalties
(1) In general
Subject to paragraph (2), any employer who violates any provi-
sion of this chapter may be assessed a civil penalty of not more
than $10,000.
(2) Determination of amount
In determining the amount of any penalty under paragraph (1),
the Secretary shall take into account the previous record of the
person in terms of compliance with this chapter and the gravity
of the violation.
(3) Collection
Any civil penalty assessed under this subsection shall be col-
lected in the same manner as is required by subsections (b)–(e)
of Section 1853 of this title with respect to civil penalties assessed
under subsection (a) of such section.
(b) Injunctive actions by Secretary
The Secretary may bring an action under this section to restrain vio-
lations of this chapter. The Solicitor of Labor may appear for and
represent the Secretary in any litigation brought under this chapter.
In any action brought under this section, the district courts of the
United States shall have jurisdiction, for cause shown, to issue tem-
porary or permanent restraining orders and injunctions to require
compliance with this chapter, including such legal or equitable relief
incident thereto as may be appropriate, including, but not limited
to, employment, reinstatement, promotion, and the payment of lost
wages and benefits.
(c) Private civil actions
(1) Liability
An employer who violates this chapter shall be liable to the
employee or prospective employee affected by such violation.
Such employer shall be liable for such legal or equitable relief
as may be appropriate, including, but not limited to, employ-
ment, reinstatement, promotion, and the payment of lost
wages and benefits.
(2) Court
An action to recover the liability prescribed in paragraph (1)
may be maintained against the employer in any federal or
state court of competent jurisdiction by an employee or pro-
spective employee for or on behalf of such employee, prospec-
tive employee, and other employees or prospective employees
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similarly situated. No such action may be commenced more
than 3 years after the date of the alleged violation.
(3) Costs
The court, in its discretion, may allow the prevailing party
(other than the United States) reasonable costs, including attor-
ney’s fees.
(d) Waiver of rights prohibited
The rights and procedures provided by this chapter may not be waived
by contract or otherwise, unless such waiver is part of a written set-
tlement agreed to and signed by the parties to the pending action or
complaint under this chapter.
§ 2006. Exemptions
(a) No application to governmental employers
This chapter shall not apply with respect to the U.S. Government,
any state or local government, or any political subdivision of a state
or local government.
(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 perfor-
mance 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
(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 connec-
tion 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
Appendix D: Consumer and Credit Data Privacy Laws
425
(iii) Any employee of a contractor to any such agency
(iv) Any individual applying for a position in any such
agency
(v) Any individual assigned to a space where sensitive
cryptologic information is produced, processed, or
/> stored for any such agency
(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
Nothing in this chapter shall be construed to prohibit the adminis-
tration, by the federal government, in the performance of any coun-
terintelligence function, of any lie detector test to an employee of a
contractor of the Federal Bureau of Investigation of the Department
of Justice who is engaged in the performance of any work under the
contract with such bureau.
(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 investi-
gation involving economic loss or injury to the employer’s busi-
ness, 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
(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
(D) Contains at a minimum
(i) An identification of the specific economic loss or
injury to the business of the employer
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(ii) A statement indicating that the employee had
access to the property that is the subject of the
investigation
(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 pri-
mary 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 subdi-
vision 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
(iv) Public transportation
(B) Currency, negotiable securities, precious commodities or
instruments, or proprietary information
(2) Access
The exemption provided under this subsection shall not apply
if the test is administered to a prospective employee who would
not be employed to protect facilities, materials, operations, or
assets referred to in paragraph (1).
(f) Exemption for drug security, drug theft, or drug diversion investigations (1) In general
Subject to paragraph (2) and Sections 2007 and 2009 of this
title, this chapter shall not prohibit the use of a polygraph test
by any employer authorized to manufacture, distribute, or
dispense a controlled substance listed in schedule I, II, III, or IV
of Section 812 of Title 21.
(2) Access
The exemption provided under this subsection shall apply
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427
(A) If the test is administered to a prospective employee who
would have direct access to the manufacture, storage, dis-
tribution, or sale of any such controlled substance
(B) In the case of a test administered to a current employee, if
(i) The test is administered in connection with an ongo-
ing 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
(ii) The employee had access to the person or property
that is the subject of the investigation
§ 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 dis-
charged, disciplined, denied employment or promotion, or oth-
erwise 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)–(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
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(iii) Political beliefs or affiliations
(iv) Any matter relating to sexual behavior
(v) Beliefs, affiliations, opinions, or lawful activities
regarding unions or labor or
ganizations
(D) The examiner does not conduct the test if there is sufficient
written evidence by a physician that the examinee is suffer-
ing from a medical or psychological condition or undergo-
ing 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
(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 con-
stitute additional supporting evidence for the pur-
poses 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
(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)
(E) Is provided an opportunity to review all questions to be