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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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  § 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

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  (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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  (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

 

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