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 ofTexas Polygraph Examiners Act (RQ-1485)

DearMr. Perot:

You request advice about the impact of the Employee Polygraph Protection Act of 1988, 29U.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 inDecember of 1988, shortly before the expiration date ofTexas Polygraph licenses. V.T.C.S. art. 4413(29cc), § 17 (license shall be renewed annually): Tex. Polygraph Ex. Bd., 13Tex. 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 actgenerally prohibits private employers fromusing polygraph tests on employees or prospective employees. There are limited exceptions to this prohibition, some of which are available only ifthepolygraph examiner complies with certain statutory requirements.

TheAct prohibits private employers engaged incommerce or inthe production ofgoods for commerce from requiring any employee orprospective employee to take a lie detector test. 29U.S.C. 5 2002. The term "liedetector@'isdefined 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 ofwhich are used, forthepurpose .of

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rendering adiagnostic opinion regarding the honesty ordishonesty of an individual.

14L.S2001(3~). Apolygraph isone 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 theUnited States, any state or local government, or anypolitical subdivision. IgL B2006. Exemptions permit the federal government to administer a lie detector test to contractors with the Federal Bureau of Investigation and several agencies with responsibilities inthe area ofnational defense or national security. Xdz 52006(b), (c).Other exemptions lift theprohibition against the use of polygraph examinations on employees or prospective employees by (1) aprivate employer engaged inan 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 tomanufacture, distribute, or dispense controlled substances. Id. 52006(d)-(f). Each of these exceptions permits only theuse ofpolygraphs, not other lie detector tests, and each iscircumscribed by limitations set out inthe 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 forprivate employers arenot available unless thepolygraph examination is conducted inaccordance with requirements directed at protecting the examinee's rights. The act restricts the kinds of questions that the examinee may be asked andpermits him to terminate the test at any time. The examiner may not conduct the test ifthere 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 anyquestion 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 fivepolygraph tests aday or conduct atest for less than ago-minute period. Id. 52007(b)(5).

The Employee's Polygraph Protection Act alsomakes the exemptions for private employers contingent upon the PolYgrwh examiner's compliance with. the following provisions on qualifications and requirements:

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(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 inthe State inwhich the test istobe conducted, ifsorequired by the State; and
(B) maintains a minimum of a 0.000bond oran eauivalent amount pi nrofessional liabilitv coveraue.
(2)Requirements.--The examiner--
(A) renders any opinion or conclusion regarding the test--

(i) inwriting and solely
on thebasis 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 aminimum period of 3 years after administration of the test. (Emphasis added.)

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L S 2007(~1. A Polygraph examiner may disclose information acquired fromapolygraph test only to specified persons and entities. L 52008. Finally, the federal act states as follows:

Except as provided in subsections (a), (b),and (c)of section 7 129U.S.C. 520061, thisAct shall not preempt anyprovision of any State or local lawor of any negotiated collective bargaining agreement that prohibits lie detector tests or is more restrictive with respect to lie detector tests than anyprovision of thisAct.
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 askwhether 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 anapplicant for a license must furnish theboard evidence of a surety bond or insurance policy in the sum of $5,000. V.T.C.S. art. 4413(29cc), 58(b). Thebond or insurance policy istoprovide for the payment to the extent of its face amount of all judgments recovered against the licensee because of anywrongful or illegal acts committed byhim inthe course ofhis examinations. Id. Aboard rule requires that thebond or insurance policy remain in force asa 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 ofprivate employers under the exemptions found in 29U.S.C. 8 2006(d), (e), and (f)- A licensed polygraph examiner who never tests employees under those exemptions will not need tomaintain a $50,000 bond or the equivalent in liability coverage. The federal statute does not change the requirements for licensing as apolygraph examiner under~Texas law. Instead, iteffectively prevents licensed polygraph examiners from testing employees orprospective employees for a private employer, except as permitted under the exemptions, and imposes additional requirements onan examiner who conducts
an examination permitted by anexemption.

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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, hemust secure a $50,000 bond or equivalent liability coverage. The federal legislation does not change the authority ofthe Polygraph Examiners Board to issue or renew a license for an applicant who provides evidence of a surety bond or insurance policy inthe sum of $5,000.

You next askwhat is meant by theunderlined language of the following provision of the federal statute:

(B) maintains aminimum ofa $50,000 bond
or an eauivalent amount ofnrofessional 1a i- bilitv coveracre. (Emphasis added.)

29U.S.C. 52007(c)(l)(B).

You correctly suggest that this insurance policy. "Coverage" isthe

- language refers to an sum of riskswhich an insurance policy covers. See, e.a., Seabauah v. Sisk, 413 S.W.2d 602, 606 (MO.App. 1967);Jreimuth v. Glens Falls Ins. COS, 314 P.2d 468, 471 (Wash. 1957); D'Anaelo v. Cornell Panerboard Products. Co., 207N.W.2d 846, 849 (Wis. 1973):Webster's New International Dictionary 613 (2d ed. 1947).

You also ask what conditions should beplaced on the obligor according to suchpolicy. The statute provides that the Secretary ofLabor shall issue rules and regulations necessary or appropriate to carry out theAct. 29 U.S.C. 52001 (note). The regulations may answer your question about the conditions placed on the obligor. We can provide only general guidance on thismatter, and any suggestions we make must be reevaluated when regulations are issued.

Professional and occupational liability insurance policies are issued toprofessional or business people to insure against error,mistake, oromissions. 43Am. Jur. 2d Insurance § 726. Such policies may exclude coverage for an undertaking inviolation of law. Id.: Annot., 33ALR 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 theAct was intended to limit the courts ingranting any and all remedies currently available. H.R. Conf. Rep. No. 659, 100th Cong., 2d Sess.

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renrinted in 1988U.S. Code Cong. & Admin. News 749, 752. The federal statute imposes specific duties on a polygraph examiner who tests an employee orprospective employee for a private employer under one

### ofthe section 7exemptions. The purpose of theprofessional liability insurance policy may be to pay damages arising from the polygraph examiner's errors, mistakes, or omissions ingiving such examinations, inparticular, errors, mistakes, **and** omissions with respect to the requirements imposed upon him by the statute.

You finally askwhether the Polygraph Examiners Board isrequired to enforce the conditions set forth in the federal Act, and you refer us toprovisions 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 isalso directed to cooperate with state agencies to aid incarrying out thepurposes of the Act. Section 2005 authorizes the Secretary to seek civil penalties from an employer who violates any provision of the Act and tobring an action to restrain violations thereof. Italso allows aprivate civil action against an employer who violates theAct by the employee orprospective employee affected by suchviolation. 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 toviolations ofthe Polygraph Examiners Act, but, inparticular cases, a licensee's disregard of conditions required under federal law might demonstrate "unworthiness or incompetency to act as apolygraph 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, nodirect 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

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tests, except where permitted by the exemptions set out intheAct. 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 licensedexaminations of employees orprospective employees forprivate employers under the exemptions to the federalAct unless he complies with the conditions set out therein, including the requirement that hemaintain a $50,000 bond or anequivalent amount ofprofessional liability insurance. The Board of Polygraph Examiners has no authority to enforce the federal law, although apolygraph examiner's conduct inviolation of itsprovisions might in some cases provide grounds for the board's bringing a disciplinary action against him.

Very truly yo , 

# J ~ i-l -J IM MiTTOX Attorney General ofTexas

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

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