November 7, 1988 

Mr. Bryan M. Perot 

Executive Officer 

Opinion Ro. JR-976 

Polygraph Examiners Board Re: Effect of federal Employee 

P. 0. Box 4087 Polygraph Protection Act on 

Austin, Texas 70773 application of Texas Polygraph 

Examiners Act (RQ-1485) 

Dear Mr. Perot: 

You request advice about the impact of the Employee 

Polygraph Protection Act of 1988, 29 U.S.C. §§ 2001-2009, on 

the responsibilities of the Polygraph Examiners Board in 

administering the Texas Polygraph Examiners Act, article 

4413(29cc), V.T.C.S. 

The Employee Polygraph Protection Act of 1988 is a 

federal statute which will go into effect in December of 

1988, shortly before the expiration date of Texas Polygraph 

licenses. V.T.C.S. art. 4413(29cc), § 17 (license shall be 

renewed annually): Tex. Polygraph Ex. Bd., 13 Tex. Reg. 831 

(1988), adonted, 13 Tex. Reg. 2163 (1988) (amending 22 

T.A.C. s 395.13) (renewal date is December 31). Your 

questions relate to the effect of this legislation on the 

license renewal process which your board administers. The 

federal act generally prohibits private employers from using 

polygraph tests on employees or prospective employees. 

There are limited exceptions to this prohibition, some of 

which are available only if the polygraph examiner complies 

with certain statutory requirements. 

The Act prohibits private employers engaged in commerce 

or in the production of goods for commerce from requiring 

any employee or prospective employee to take a lie detector 

test. 29 U.S.C. 5 2002. The term "lie detector@' is defined 

to include the following: 

a PolYgraph, deceptograph, voice stress 

analyzer, psychological stress evaluator, or 

any other similar device (whether mechanical 

or electrical) that is used, or the results of which are used, for the purpose .of 

P. 4973 
Mr. Bryan M. Perot - Page 2 (JM-976) 

rendering a diagnostic opinion regarding the 

honesty or dishonesty of an individual. 

14L. S 2001(3~). A polygraph is one kind of lie detector 

subject to the prohibition of this statute. Seeid. 

5 2001(3) (defining llpolygraphll). 

The Employee Polygraph Protection Act does not apply to 

employees of the United States, any state or local government, or any political subdivision. IgL B 2006. Exemptions 

permit the federal government to administer a lie detector 

test to contractors with the Federal Bureau of Investigation and several agencies with responsibilities in the area 

of national defense or national security. Xdz 5 2006(b), 

(c). Other exemptions lift the prohibition against the use 

of polygraph examinations on employees or prospective 

employees by (1) a private employer engaged in an ongoing 

investigation involving economic loss or injury to the 

business, (2) a private employer in the business of 

providing specified security services, and (3) a private 

employer authorized to manufacture, distribute, or dispense 

controlled substances. Id. 5 2006(d)-(f). Each of these 

exceptions permits only the use of polygraphs, not other lie 

detector tests, and each is circumscribed by limitations set 

out in the statute. 

The Employee Polygraph Protection Act states 

restrictions on the use of the exemptions, some of which 

relate to the polygraph examiner's qualifications and his 

duties during the examination. Id. g 2007. The exemptions 

for private employers are not available unless the polygraph 

examination is conducted in accordance with requirements 

directed at protecting the examinee's rights. The act 

restricts the kinds of questions that the examinee may be 

asked and permits him to terminate the test at any time. 

The examiner may 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 abnormal responses 

during the testing. 

shall not ask 

& § 200:Af;Ll)(A)-(D). The examiner 

any question was not given to the 

examinee in writing for review prior to the test. & 

§ 2007(b)(2)(E), (3). The examiner may not conduct more 

than five polygraph tests a day or conduct a test for less 

than a go-minute period. Id. 5 2007(b)(5). 

The Employee's Polygraph Protection Act also makes the 

exemptions for private employers contingent upon the 

PolYgrwh examiner's compliance with. the following 

provisions on qualifications and requirements: 

4974 
Mr. Bryan M. Perot - Page 3 (JM-976) 

(c) . . . The exemptions provided [for 

certain private employers] under subsections 

Cd), (e), and (f) of section 7 [29 U.S.C. 

S§ 2006(d)-(f)] shall not apply unless the 

individual who conducts the polygraph test 

satisfies the requirements under the 

following paragraphs: 

(1) Qualifications.--The examiner-- 

license g:anted Vby licensing 

, (A) ha 

and 

regulatory authorities in the State 

in which the test is to be conducted, 

if so required by the State; and 

(B) maintains a minimum of a 

0.000 bond or an eauivalent amount 

pi nrofessional liabilitv coverau e. 

(2) Requirements.--The examiner-- 

(A) renders any opinion or 

conclusion regarding 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 relevant to the purpose 

and stated objectives of the 

test, and 

(iii) that does not include 

any recommendation 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. (Emphasis added.) 

p. 4975 
Mr. Bryan M. Perot - Page 4 (JM-976) 

L S 2007 (~1. A Polygraph examiner may disclose 

information acquired from a polygraph test only to specified 

persons and entities. L 5 2008. Finally, the federal act 

states as follows: 

Except as provided in subsections (a), 

(b), and (c) of section 7 129 U.S.C. 5 20061, 

this Act 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 Act. 

IpL 5 2009. The subsections of section 7 referred to 

provide for the exemptions for governmental employees, 

contractors with national security and national defense 

agencies, and contractors with the Federal Bureau of 

Investigation. 

You first ask whether the-Employee Polygraph Protection 

Act of 1988 will alter your renewal process regarding the 

state's bond or insurance requirement. The Texas Polygraph 

Examiners Act provides that an applicant for a license must 

furnish the board evidence of a surety bond or insurance 

policy in the sum of $5,000. V.T.C.S. art. 4413(29cc), 

5 8(b). The bond or insurance policy is to provide for the 

payment to the extent of its face amount of all judgments 

recovered against the licensee because of any wrongful or 

illegal acts committed by him in the course of his examinations. Id. A board rule requires that the bond or insurance 

policy remain in force as a condition to continued licensure. Tex. Polygraph Ex. Bd., 13 Tex. Reg. 831 (1988), 

sunra. 

The federal statute requires a $50,000 bond or an 

equivalent amount of professional liability coverage of 

polygraph examiners who test employees of private employers 

under the exemptions found in 29 U.S.C. 8 2006(d), (e), and 

(f) - A licensed polygraph examiner who never tests 

employees under those exemptions will not need to maintain a 

$50,000 bond or the equivalent in liability coverage. The 

federal statute does not change the requirements for 

licensing as a polygraph examiner under~Texas law. Instead, 

it effectively prevents licensed polygraph examiners from 

testing employees or prospective employees for a private 

employer, except as permitted under the exemptions, and 

imposes additional requirements on an examiner who conducts 

an examination permitted by an exemption. 

p. 4976 
Mr. Bryan M. Perot - Page 5 (JM-976) 

The individual polygraph examiner must therefore decide 

whether he wishes to be qualified to test employees and 

prospective employees of private employers under the 

exemptions, and if so, he must secure a $50,000 bond or 

equivalent liability coverage. The federal legislation does 

not change the authority of the Polygraph Examiners Board to 

issue or renew a license for an applicant who provides 

evidence of a surety bond or insurance policy in the sum of 

$5,000. 

You next ask what is meant by the underlined language 

of the following provision of the federal statute: 

(B) maintains a minimum of a $50,000 bond 

or an eauivalent amount of nrofessional 1 i- a

bilitv coveracre. (Emphasis added.) 

29 U.S.C. 5 2007(c)(l)(B). 

You correctly suggest that this 

insurance policy. "Coverage" is the - 

language refers to an 

sum of risks which an 

insurance policy covers. See, e.a., Seabauah v. Sisk, 413 

S.W.2d 602, 606 (MO. App. 1967); Jreimuth v. Glens Falls 

Ins. C OS, 314 P.2d 468, 471 (Wash. 1957); D'Anaelo v. 

Cornell Panerboard Products. Co., 207 N.W.2d 846, 849 (Wis. 

1973): Webster's New International Dictionary 613 (2d ed. 

1947). 

You also ask what conditions should be placed on the 

obligor according to such policy. The statute provides that 

the Secretary of Labor shall issue rules and regulations 

necessary or appropriate to carry out the Act. 29 U.S.C. 

5 2001 (note). The regulations may answer your question 

about the conditions placed on the obligor. We can provide 

only general guidance on this matter, and any suggestions we 

make must be reevaluated when regulations are issued. 

Professional and occupational liability insurance 

policies are issued to professional or business people to 

insure against error, mistake, or omissions. 43 Am. Jur. 2d 

Insurance § 726. Such policies may exclude coverage for an 

undertaking in violation of law. Id.: Annot., 33 ALR 4th 

14, § 5 (1984). 

The House Conference Report on the Employee Polygraph 

Protection Act stated that the enforcement provisions were 

not intended to limit private actions being brought under 

current law and that nothing in the Act was intended to 

limit the courts in granting any and all remedies currently 

available. H.R. Conf. Rep. No. 659, 100th Cong., 2d Sess. 

p- 4977 
Mr. Bryan M. Perot - Page 6 (JM-976) 

renrinted in 1988 U.S. Code Cong. & Admin. News 749, 752. 

The federal statute imposes specific duties on a polygraph 

examiner who tests an employee or prospective employee for a 

private employer under one of the section 7 exemptions. The 

purpose of the professional liability insurance policy may 

be to pay damages arising from the polygraph examiner's 

errors, mistakes, or omissions in giving such examinations, 

in particular, errors, mistakes, and omissions with respect 

to the requirements imposed upon him by the statute. 

You finally ask whether the Polygraph Examiners Board 

is required to enforce the conditions set forth in the 

federal Act, and you refer us to provisions codified at 29 

U.S.C. 5s 2004, 2005. Section 2004 empowers the Secretary 

of Labor to make investigations and gives him subpoena 

authority. He is also directed to cooperate with state 

agencies to aid in carrying out the purposes of the Act. 

Section 2005 authorizes the Secretary to seek civil 

penalties from an employer who violates any provision of the 

Act and to bring an action to restrain violations thereof. 

It also allows a private civil action against an employer 

who violates the Act by the employee or prospective employee 

affected by such violation. Neither of these sections permit 

or require enforcement by the Polygraph Examiners Board. 

The conditions which the federal legislation imposes on 

polygraph examiners who conduct examinations under the 

exemptions in section 7 may, however, be relevant to 

disciplinary actions by the Board. 

Several of the grounds for disciplining a licensee 

relate solely to violations of the Polygraph Examiners Act, 

but, in particular cases, a licensee's disregard of conditions required under federal law might demonstrate "unworthiness or incompetency to act as a polygraph examiner." 

V.T.C.S. art. 4413(29cc), 5 19(7). Moreover, some of the 

conduct which would violate requirements imposed upon a 

polygraph examiner by the federal act could also violate 

provisions of the Texas statute and thus provide grounds for 

disciplining a licensee. m .& 5 19(13) (violating 

confidentiality provision of state law). The Board has, 

however, no direct authority to enforce the federal law. 

SUMMARY 

The Employee Polygraph Protection Act 

of 1988, a federal statute effective in 

December of 1988, prohibits private 

employers from requiring employees or 

prospective employees to take lie detector 

p. 4978 
Mr. Bryan M. Perot - Page 7 (JM-976) 

tests, except where permitted by the 

exemptions set out in the Act. The federal 

statute will not change the amount of the 

bond or insurance coverage required for 

issuance or renewal of a license under the 

Texas Polygraph Examiners Act. V.T.C.S. 

art. 4413(29cc). However, 

polygraph examiner may not conduEt 

licensed 

examinations of employees or prospective employees 

for private employers under the exemptions 

to the federal Act unless he complies with 

the conditions set out therein, including 

the requirement that he maintain a $50,000 

bond or an equivalent amount of professional 

liability insurance. The Board of Polygraph 

Examiners has no authority to enforce the 

federal law, although a polygraph examiner's 

conduct in violation of its provisions might 

in some cases provide grounds for the 

board's bringing a disciplinary action 

against him. 

Very truly yo , J i-l ~ 

-J I M MiTTOX 

Attorney General of Texas 

MARYEELLER 

First Assistant Attorney General 

MU'MCCREARY 

Executive Assistant Attorney General 

JUDGE ZOLLIE STEAELEY 

Special Assistant Attorney General 

RICK GILPIN 

Chairman, Opinion Committee 

Prepared by Susan L. Garrison 

Assistant Attorney General 

P. 4979