§ 2006. — Exemptions.
[Laws in effect as of January 24, 2002]
[Document not affected by Public Laws enacted between
January 24, 2002 and December 19, 2002]
[CITE: 29USC2006]
TITLE 29--LABOR
CHAPTER 22--EMPLOYEE POLYGRAPH PROTECTION
Sec. 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
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 Imagery and Mapping 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
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 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
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
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--
(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, Sec. 7, June 27, 1988, 102 Stat. 648; Pub. L. 103-359,
title V, Sec. 501(n), Oct. 14, 1994, 108 Stat. 3430; Pub. L. 104-201,
div. A, title XI, Sec. 1122(b)(3), Sept. 23, 1996, 110 Stat. 2687.)
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, which was set out as
a note under section 435 of Title 50, War and National Defense, prior to
revocation by Ex. Ord. No. 12958, Sec. 6.1(d), Apr. 17, 1995, 60 F.R.
19843, set out as a note under section 435 of Title 50. For provisions
relating to special access programs, see section 4.4 of Ex. Ord. No.
12958.
Amendments
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,''.
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.
Section Referred to in Other Sections
This section is referred to in sections 2002, 2007, 2008, 2009 of
this title.
