29 U.S.C. § 2006 — Exemptions

Page 763 TITLE 29—LABOR § 2006 (b) Subpoena authority For the purpose of any hearing or investiga- tion under this chapter, the Secretary shall have the authority contained in sections 49 and 50 of title 15. (Pub. L. 100–347, § 5, June 27, 1988, 102 Stat. 647.) Statutory Notes and Related Subsidiaries EFFECTIVE DATE Section effective 6 months after June 27, 1988, except that rules and regulations shall be issued not later than 90 days after June 27, 1988, see section 11 of Pub. L. 100–347, set out as a note under section 2001 of this title. § 2005. Enforcement provisions (a) Civil penalties (1) In general Subject to paragraph (2), any employer who violates any provision 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 sub- section shall be collected in the same manner as is required by subsections (b) through (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 violations of this chapter. The Solicitor of Labor may appear for and rep- resent 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 temporary or permanent restraining or- ders 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, rein- statement, 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 em- ployee affected by such violation. Such em- ployer shall be liable for such legal or equi- table relief as may be appropriate, including, but not limited to, employment, reinstate- ment, 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 em- ployee, prospective employee, and other em- ployees or prospective employees 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 attorney’s fees. (d) Waiver of rights prohibited The rights and procedures provided by this chapter may not be waived by contract or other- wise, 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. (Pub. L. 100–347, § 6, June 27, 1988, 102 Stat. 647.) Statutory Notes and Related Subsidiaries EFFECTIVE DATE Section effective 6 months after June 27, 1988, except that rules and regulations shall be issued not later than 90 days after June 27, 1988, see section 11 of Pub. L. 100–347, set out as a note under section 2001 of this title. § 2006. Exemptions (a) No application to governmental employers This chapter shall not apply with respect to the United States 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 performance of any coun- terintelligence function, of any lie detector test to— (A) any expert or consultant under con- tract to the Department of Defense or any employee of any contractor of such Depart- ment; or (B) any expert or consultant under con- tract with the Department of Energy in con- nection with the atomic energy defense ac- tivities 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 intel- ligence or counterintelligence function, of any lie detector test to— (A)(i) any individual employed by, as- signed to, or detailed to, the National Secu- rity Agency, the Defense Intelligence Agen- cy, the National Geospatial-Intelligence Agency, or the Central Intelligence Agency, (ii) any expert or consultant under con- tract to any such agency, (iii) any employee of a contractor to any such agency, Page 764 TITLE 29—LABOR § 2006 (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 ac- cess 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 administration, by the Federal Gov- ernment, in the performance of any counter- intelligence function, of any lie detector test to an employee of a contractor of the Federal Bu- reau of Investigation of the Department of Jus- tice 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 poly- graph test if— (1) the test is administered in connection with an ongoing investigation involving eco- nomic loss or injury to the employer’s busi- ness, such as theft, embezzlement, misappro- priation, or an act of unlawful industrial espi- onage 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 inci- dent or activity under investigation; and (4) the employer executes a statement, pro- vided to the examinee before the test, that— (A) sets forth with particularity the spe- cific incident or activity being investigated and the basis for testing particular employ- ees, (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 eco- nomic loss or injury to the business of the employer, (ii) a statement indicating that the em- ployee 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 prospec- tive 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 hav- ing 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, includ- ing— (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, pre- cious commodities or instruments, or propri- etary information. (2) Access The exemption provided under this sub- section shall not apply if the test is adminis- tered 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, dis- tribute, 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 sub- section shall apply— (A) if the test is administered to a prospec- tive 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 poten- tially involving, loss or injury to the man- ufacture, distribution, or dispensing of any such controlled substance by such em- ployer, and (ii) the employee had access to the per- son 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.) Editorial Notes REFERENCES IN TEXT Executive Order 12356, referred to in subsec. (b)(2)(B), was Ex. Ord. No. 12356, Apr. 2, 1982, 47 F.R. 14874, 15557, Page 765 TITLE 29—LABOR § 2007 which was formerly set out as a note under section 435 (now section 3161) of Title 50, War and National De- fense, and was revoked by Ex. Ord. No. 12958, § 6.1(d), Apr. 17, 1995, 60 F.R. 19843. For provisions relating to special access programs, see section 4.3 of Ex. Ord. No. 13526, set out as a note under section 3161 of Title 50. AMENDMENTS 2008—Subsec. (b)(2)(A)(i). Pub. L. 110–417 substituted ‘‘National Geospatial-Intelligence Agency’’ for ‘‘Na- tional Imagery and Mapping Agency’’. 1996—Subsec. (b)(2)(A)(i). Pub. L. 104–201 substituted ‘‘National Imagery and Mapping Agency’’ for ‘‘Central Imagery Office’’. 1994—Subsec. (b)(2)(A)(i). Pub. L. 103–359 inserted ‘‘the Central Imagery Office,’’ after ‘‘Defense Intelligence Agency,’’. Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 1996 AMENDMENT Amendment by Pub. L. 104–201 effective Oct. 1, 1996, see section 1124 of Pub. L. 104–201, set out as a note under section 193 of Title 10, Armed Forces. EFFECTIVE DATE Section effective 6 months after June 27, 1988, except that rules and regulations shall be issued not later than 90 days after June 27, 1988, see section 11 of Pub. L. 100–347, set out as a note under section 2001 of this title. § 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 ex- emption under subsection (d) of section 2006 of this title shall not apply if an employee is dis- charged, 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 sub- section may serve as additional supporting evidence. (2) Under other exemptions In the case of an exemption described in sub- section (e) or (f) of such section, the exemp- tion shall not apply if the results of an anal- ysis 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), (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 ter- minate 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 behav- ior; and (v) beliefs, affiliations, opinions, or law- ful activities regarding unions or labor or- ganizations; 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 ab- normal responses during the actual testing phase. (2) Pretest phase During the pretest phase, the prospective ex- aminee— (A) is provided with reasonable written no- tice of the date, time, and location of the test, and of such examinee’s right to obtain and consult with legal counsel or an em- ployee representative before each phase of the test; (B) is informed in writing of the nature and characteristics of the tests and of the in- struments 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 ob- served, (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 re- cording of the test; (D) is read and signs a written notice in- forming such examinee— (i) that the examinee cannot be required to take the test as a condition of employ- ment, (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 During the actual testing phase, the exam- iner does not ask such examinee any question relevant during the test that was not pre- sented in writing for review to such examinee before the test. (4) Post-test phase Before any adverse employment action, the employer shall—