29 U.S.C. § 2007 — Restrictions on use of exemptions

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which was formerly set out as a note under section 435 (now section 3161) of Title 50, War and National De- fense, and was revoked by Ex.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— Page 766 TITLE 29—LABOR § 2008 (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 con- clusion 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 The examiner shall not conduct and com- plete more than five polygraph tests on a cal- endar 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 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 con- ducted, if so required by the State; and (B) maintains a minimum of a $50,000 bond or an equivalent amount of professional li- ability coverage. (2) Requirements The examiner— (A) renders any opinion or conclusion re- garding 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 rel- evant to the purpose and stated objectives of the test, and (iii) that does not include any rec- ommendation 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.) 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. § 2008. Disclosure of information (a) In general A person, other than the examinee, may not disclose information obtained during a poly- graph test, except as provided in this section. (b) Permitted disclosures A polygraph examiner may disclose informa- tion acquired from a polygraph test only to— (1) the examinee or any other person specifi- cally designated in writing by the examinee; (2) the employer that requested the test; or (3) any court, governmental agency, arbi- trator, 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 de- scribed in subsection (a), (b), or (c) of section 2006 of this title) 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. (Pub. L. 100–347, § 9, June 27, 1988, 102 Stat. 652.) 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. § 2009. Effect on other law and agreements Except as provided in subsections (a), (b), and (c) of section 2006 of this title, this chapter shall not preempt any provision of any 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 chapter. (Pub. L. 100–347, § 10, June 27, 1988, 102 Stat. 653.) 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. CHAPTER 23—WORKER ADJUSTMENT AND RETRAINING NOTIFICATION Sec. 2101. Definitions; exclusions from definition of loss of employment. 2102. Notice required before plant closings and mass layoffs. 2103. Exemptions. 2104. Administration and enforcement of require- ments. 2105. Procedures in addition to other rights of em- ployees. 2106. Procedures encouraged where not required. 2107. Authority to prescribe regulations. 2108. Effect on other laws. 2109. Report on employment and international competitiveness. § 2101. Definitions; exclusions from definition of loss of employment (a) Definitions As used in this chapter— (1) the term ‘‘employer’’ means any business enterprise that employs—