Employee Polygraph Protection Act of 1988
PL 100-347 (H.R.1212), enacted 06/27/1988

102 STAT. 646 
PUBLIC LAW 100-347—JUNE 27, 1988 
Public Law 100-347 
100th Congress 
An Act 
June 27, 1988 
To prevent the denial of employment opportunities by prohibiting the use of lie 
[H.R. 1212] 
detectors by employers involved in or affecting interstate commerce. 
Be it enacted by the Senate and House of Representatives of the 
Employee 
United States of America in Congress assembled. 
Polygraph 
Protection Act 
SECTION 1. SHORT TITLE. 
of 1988 
29 use 2001 
This Act may be cited as the "Employee Polygraph Protection Act 
note. 
of 1988". 
29 use 2001. 
SEC. 2. DEFINITIONS. 
As used in this Act: 
(1) COMMERCE.—The term "commerce" has the meaning pro-
vided by section 3(b) of the Fair Labor Standards Act of 1938 (29 
U.S.C. 203(b)). 
(2) EMPLOYER.—The term "employer" includes any person 
acting directly or indirectly in the interest of an employer in 
relation to an employee or prospective employee. 
(3) LIE DETECTOR.—The term "lie detector" includes a poly-
graph, 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 rendering a diagnostic opinion regarding the honesty 
or dishonesty of an individual. 
(4) POLYGRAPH.—The term "polygraph" means an instrument 
that— 
(A) records continuously, visually, permanently, and si-
multaneously changes in cardiovascular, respiratory, and 
electrodermal patterns as minimum instrumentation stand-
ards; and 
(B) is used, or the results of which are used, for the 
purpose of rendering a diagnostic opinion regarding the 
honesty or dishonesty of an individual. 
(5) SECRETARY.—The term "Secretary" means the Secretary of 
Labor. 
29 use 2002. 
SEC. 3. PROHIBITIONS ON LIE DETECTOR USE. 
Except as provided in sections 7 and 8, it shall be unlawful for any 
employer engaged in or affecting commerce or in the production of 
goods for commerce— 
(1) directly or indirectly, to require, request, suggest, or cause 
any employee or prospective employee to take or submit to any 
lie detector test; 
(2) to use, accept, refer to, or inquire concerning the results of 
any lie detector test of any employee or prospective employee; 
Discrimination, 
(3) to discharge, discipline, discriminate against in any 
prohibition. 
manner, or deny employment or promotion to, or threaten to 
take any such action against— 
PUBLIC LAW 100-347—JUNE 27,1988 
102 STAT. 647 
(A) any employee or prospective employee who refuses, 
declines, or fails to take or submit to any lie detector test, 
or 
(B) any employee or prospective employee on the basis of 
the results of any lie detector test; or 
(4) to discharge, discipline, discriminate against in any Discrimination, 
manner, or deny emplojrment or promotion to, or threaten to prohibition. 
take any such action against, any employee or prospective 
employee because— 
(A) such employee or prospective employee has filed any 
complaint or instituted or caused to be instituted any 
proceeding under or related to this Act, 
(B) such employee or prospective employee has testified 
or is about to testify in any such proceeding, or 
(C) of the exercise by such employee or prospective em-
ployee, on behalf of such employee or another person, of 
any right afforded by this Act. 
SEC. 4. NOTICE OF PROTECTION. 
29 USC 2003. 
The Secretary shall prepare, have printed, and distribute a notice 
setting forth excerpts from, or summaries of, the pertinent provi-
sions of this Act. 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. 
SEC. 5. AUTHORITY OF THE SECRETARY. 
(a) IN GENERAL.—The Secretary shall— 
(1) issue such rules and regulations as may be necessary or 
appropriate to carry out this Act; 
(2) cooperate with regional, State, local, and other agencies, 
and cooperate with and furnish technical assistance to em-
ployers, labor organizations, and emplojnnent agencies to aid in 
effectuating the purposes of this Act; and 
(3) make investigations and inspections and require the keep-
ing of records necessary or appropriate for the administration of 
this Act. 
(b) SUBPOENA AUTHORITY.—For the purpose of any hearing or 
investigation under this Act, the Secretary shall have the authority 
contained in sections 9 and 10 of the Federal Trade Commission Act 
(15U.S.C.49and50). 
SEC. 6. ENFORCEMENT PROVISIONS. 
29 USC 2005. 
(a) CIVIL PENALTIES.— 
(1) IN GENERAL,—Subject to paragraph (2), any employer who 
violates any provision of this Act 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 Act and the gravity of the violation. 
(3) COLLECTION.—Any civil penalty assessed under this subsec-
tion shall be collected in the same manner as is required by 
subsections 0^) through (e) of section 503 of the Migrant and 
Seasonal Agricultural Worker Protection Act (29 U.S.C. 1853) 
with respect to civil penalties assessed under subsection (a) of 
such section. 
29 USC 2004. 
Regulations. 
State and local 
governments. 
Records. 
102 STAT. 648 
PUBLIC LAW 100-347—JUNE 27, 1988 
(b) INJUNCTIVE ACTIONS BY THE SECRETARY.—The Secretary 
may 
bring an action under this section to restrain violations of this Act. 
The Solicitor of Labor may appear for and represent the Secretary 
Courts, U.S. 
in any litigation brought under this Act. In any action brought 
Wages. 
under this section, the district courts of the United States shall have 
jurisdiction, for cause shown, to issue temporary or permanent 
restraining orders and injunctions to require compliance with this 
Act, including such legal or equitable relief incident thereto as may 
be appropriate, including, but not limited to, employment, reinstate-
ment, promotion, and the payment of lost wages and benefits. 
(c) PwvATE CIVIL ACTIONS.— 
(1) LIABILITY.—An employer who violates this Act shall be 
liable to the employee or prospective employee affected by such 
Wages. 
violation. Such employer shall be liable for such legal or equi-
table relief as may be appropriate, including, but not limited to, 
emplosmaent, reinstatement, promotion, and the pa3anent 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 prospective employee for or on behalf of such employee, 
prospective employee, and other employees or prospective 
employees similarly situated. No such action may be com-
menced more than 3 years after the date of the alleged 
violation. 
Courts, U.S. 
(3) COSTS.—The court, in its discretion, may allow the prevail-
ing party (other than the United States) reasonable costs, 
including attorney's fees. 
(d) WAIVER OF RIGHTS PROHIBITED.—The rights and procedures 
provided by this Act may not be waived by contract or otherwise, 
unless such waiver is part of a written settlement agreed to and 
signed by the parties to the pending action or complaint under this 
Act. 
29 u s e 2006. 
SEC. 7. EXEMPTIONS. 
(a) NO APPUCATION TO GOVERNMENTAL EMPLOYERS.—This 
Act 
shall not apply with respect to the United States Grovernment, 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 Act shall be con-
strued to prohibit the administration, by the Federal Govern-
ment, 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 em-
ployee of any contractor of such Department in connection 
with such activities. 
(2) SECURITY.—Nothing in this Act shall be construed to 
prohibit the administration, by the Federal Grovernment, in the 
performance of any intelligence or counterintelligence function, 
of any lie detector test to— 
PUBLIC LAW 100-347—JUNE 27, 1988 
102 STAT. 649 
(A)(i) any individual employed by, assigned to, or detailed 
to, the National Security Agency, the Defense Intelligence 
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 Govern-
ment 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 Act shall be 
construed to prohibit the administration, by the Federal Govern-
ment, 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 8 and 10, this Act 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 em-
ployer's business, such as theft, embezzlement, misappropria-
tion, 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 resisonable suspicion that the employee 
was involved in the incident or activity under investigation; and 
(4) the employer executes a statement, provided to the exam-
inee before the test, that— 
(A) sets forth with particularity the specific incident or 
activity being investigated and the basis for testing particu-
lar employees, 
(B) is signed by a person (other than a polygraph exam-
iner) 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 inves-
tigation, and 
(iii) a statement describing the basis of the em-
ployer'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 8 and 
10, this Act shall not prohibit the use of polygraph tests on 
prospective employees by any private employer whose primary 
Contracts. 
Classified 
information. 
Contracts. 
Classified 
information. 
Fraud. 
Espionage. 
102 STAT. 650 
PUBLIC LAW 100-347—JUNE 27, 1988 
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— 
§^^®ty- 
(A) facilities, materials, or operations having a significant 
nltknml^"^ 
impact on the health or safety of any State or political 
s^urfty. 
subdivision thereof, or the national security of the United 
State and local 
States, as determined under rules and regulations issued by 
governments. 
the Secretary within 90 days after the date of the enact-
ment of this Act, including—r 
Energy. 
(i) facilities engaged in the production, transmission, 
or distribution of electric or nuclear power, 
Water. 
(ii) public water supply facilities. 
Hazardous 
(iii) shipments or storage of radioactive or other toxic 
materials. 
waste materials, and 
Transportation. 
(iv) public transportation, or 
Securities. 
(B) Currency, negotiable securities, precious commodities 
or instrumente, 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, mate-
rials, operations, or assets referred to in paragraph (1). 
(f) EXEMPTION FOR DRUG SECURITY, DRUG THEFT, OR DRUG DIVER-
SION INVESTIGATIONS.— 
(1) IN GENERAL.—Subject to paragraph (2) and sections 8 and 
10, this Act 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 
202 of the Controlled Substances Act (21 U.S.C. 812). 
(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. 
29 use 2007. 
SEC. 8. 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 7 shall not apply if an employee is discharged, dis-
ciplined, denied employment or promotion, or otherwise 
discriminated against in any manner on the basis of the analy-
sis of a polygraph test chart or the refusal to take a polygraph 
test, without additional supporting evidence. The evidence re-
quired 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 
PUBLIC LAW 100-347—JUNE 27, 1988 
102 STAT. 651 
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 de-
scribed in paragraph (1) is taken against an employee or 
prospective employee, 
(b) RIGHTS OF EXAMINEE.—The exemptions provided under subsec-
tions (d), (e),: and (f) of section 7 shall not apply unless the require-
ments 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, 
(iii) political beliefs or affiliations, 
(iv) any matter relating to sexual behavior; and 
(v) beliefs, affiliations, opinions, or lawful activities 
regarding unions or labor organizations; and 
(D) the examiner does not conduct the test if there is 
sufficient written evidence by a physician that the exam-
inee is suffering from a medical or psychological condition 
or undergoing treatment that might cause abnormal re-
sponses during the actual testing phase. 
(2) PRETEST PHASE.—During the pretest phsise, 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 characteris-
tics 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, or 
(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 
constitute additional supporting evidence for the pur-
poses 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 Act, and 
(v) of the legal rights and remedies of the employer 
under this Act (including the rights of the employer 
under section 9(c)(2)); and 
Discrimination, 
prohibition. 
Health and 
medical care. 
102 STAT. 652 
PUBLIC LAW 100-347—JUNE 27, 1988 
(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 examiner does not ask such examinee any question relevant 
during the test that was not presented in writing for review to 
such examinee before the test. 
(4) POST-TEST PHASE.—Before any adverse employment action, 
the employer shall— 
(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 conclusion ren-
dered 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 complete more than five poly-
graph tests on a calendar day on which the test is given, and 
shall not conduct any such test for less than a 90-minute 
duration. 
(c) QUAUFICATIONS AND REQUIREMENTS OF EXAMINERS.—The 
exemptions provided under subsections (d), (e), and (f) of section 7 
shall not apply unless the individual who conducts the polygraph 
test satisfies the requirements under the following paragraphs: 
(1) QuAUFiCATiONS.—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 conducted, if so required by the State; and 
(B) maintains a minimum of a $50,000 bond or an equiva-
lent amount of professional liability coverage. 
(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 objec-
tives of the test, and 
(iii) that does not include any recommendation 
concerning the employment of the examinee; and 
Records. 
(B) maintains all opinions, reports, charts, written ques-
tions, lists, and other records relating to the test for a 
minimum period of 3 years after administration of the test. 
29 use 2008. 
SEC. 9. DISCLOSURE OF INFORMATION. 
(a) IN GENERAL.—A person, other than the examinee, may not 
disclose information obtained during a polygraph test, except as 
provided in this section. 
flb) PERMrrTED DISCLOSURES.—A polygraph examiner may disclose 
information acquired from a polygraph test only to— 
(1) the examinee or any other person specifically designated 
in writing by the examinee; 
(2) the employer that requested the test; or 
PUBLIC LAW 100-347—JUNE 27, 1988 
102 STAT. 653 
(3) any court, governmental agency, arbitrator, 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 em-
ployer described in subsection (a), dbX or (c) of section 7) for whom a 
polygraph test is conducted may disclose information from the test 
only to— 
(1) a person in accordance with subsection (bj; or 
(2) a governmental agency, but only insofar as the disclosed 
information is an admission of criminal conduct. 
SEC. 10. EFFECT ON OTHER LAW AND AGREEMENTS. 
29 USC 2009. 
Except as provided in subsections (a), (b), and (c) of section 7, this 
Act shall not preempt any provision of any State or local law or of 
any n^otiated collective bargaining agreement that prohibits lie 
detector tests or is more restrictive with respect to lie detector tests 
than any provision of this Act. 
SEC. 11. EFFECTIVE DATE. 
29 USC 2001 
(a) IN GENERAL.—Except as provided in subsection (b), this Act 
shall become effective 6 months after the date of enactment of this 
Act. 
Q}) REGULATIONS,—Not later than 90 days after the date of enact-
ment of this Act, the Secretary shall issue such rules and regula-
tions as may be necessary or appropriate to carry out this Act. 
Approved June 27, 1988. 
LEGISLATIVE HISTORY—H.R. 1212 (S. 1904): 
HOUSE REPORTS: No. 100-208 (Comm. on Education and Labor) and No. 100-659 
(Comm. of Conference). 
SENATE REPORTS: No. 100-284 accompanying S. 1904 (Comm. on Labor and Human 
Resources). 
CONGRESSIONAL RECORD: 
Vol. 133 (1987): Nov. 4, considered and passed House. 
Vol. 134 (1988): Mar. 1, 2, S. 1904 considered in Senate. 
Mar. 3, H.R. 1212 considered and passed Senate, amended, in 
lieu of S. 1904. 
June 1, House eigreed to conference report. 
June 9, Senate agreed to conference report.