U.S. Code » Title 29 » Chapter CHAPTER 22— EMPLOYEE POLYGRAPH PROTECTION

29 U.S.C. § 2006

Exemptions

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(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 defenseNothing 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) SecurityNothing 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,(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 investigationsSubject 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 generalSubject 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) AccessThe 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, § 7, June 27, 1988, 102 Stat. 648; Pub. L. 103–359, title V, § 501(n), Oct. 14, 1994, 108 Stat. 3430; Pub. L. 104–201, div. A, title XI, § 1122(b)(3), Sept. 23, 1996, 110 Stat. 2687; Pub. L. 110–417, [div. A], title IX, § 931(b)(3), Oct. 14, 2008, 122 Stat. 4575.)Editorial NotesReferences 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 formerly set out as a note under section 435 (now section 3161) of Title 50, War and National Defense, and was revoked by Ex. Ord. No. 12958, § 6.1(d), Apr. 17, 1995, 60 F.R. 19843. For provisions relating to special access programs, see section 4.3 of Ex. Ord. No. 13526, set out as a note under section 3161 of Title 50.

Amendments

2008—Subsec. (b)(2)(A)(i). Pub. L. 110–417 substituted “National Geospatial-Intelligence Agency” for “National Imagery and Mapping Agency”.

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,”.

Statutory Notes and Related SubsidiariesEffective 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.

Effective Date

Section effective 6 months after June 27, 1988, except that rules and regulations shall be issued not later than 90 days after June 27, 1988, see section 11 of Pub. L. 100–347, set out as a note under section 2001 of this title.

Notes of Decisions
Cited in 33 cases (1 in the last 5 years), 1990–2025 · leading case: Hossaini v. W. Missouri Med. Ctr., 140 F.3d 1140 (8th Cir. 1998).
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Hossaini v. W. Missouri Med. Ctr., 140 F.3d 1140 (8th Cir. 1998). · cites it 5× “On October 5, 1993, WMMC sent a letter requesting that Hossaini submit to a polygraph examination pursuant to 29 U.S.C. § 2006 (d). This request was repeated in a letter dated October 18.”
United States Dep't of Labor Robert B. Reich, Sec'y of U.S. Dep't of Labor v. Rapid Robert's Inc. Robert E. Wilson, Jr.., 130 F.3d 345 (8th Cir. 1998). · cites it 6× “Additionally, Rapid Robert’s claimed that the Department failed to provide technical assistance as required by the Act, that Wilson was not an employer under the Act, and that it conducted the polygraph examinations in accordance with the ongoing investigation exemption in 29…”
Sabrina Polkey v. Transtecs Corp., 404 F.3d 1264 (11th Cir. 2005). · cites it 5× “Transtecs further contends that its polygraph request falls within two of the EPPA’s exemptions: (i) the national defense and security exemption, 29 U.S.C. § 2006 (b); (ii) the ongoing investigation exemption, 29 U.”
Mennen v. Easter Stores, 951 F. Supp. 838 (N.D. Iowa 1997). · cites it 7× “20 Apparently persuaded by the employer/polygraph proponents’ argument that the threat of a polygraph examination would serve as a deterrent to employee theft in the workplace, Congress allowed a narrow exception to the statutory protection of the employee’s right to privacy…”
Stehney v. Perry, 907 F. Supp. 806 (D.N.J. 1995). · cites it 3× “any employee of [an NSA] contractor,” 29 U.S.C. § 2006 (b)(2)(A)(iii), or “any individual assigned to a space where sensitive cryptographic information produced, processed, or stored for” NSA.”
Rubin v. Tourneau, Inc., 797 F. Supp. 247 (S.D.N.Y. 1992). · cites it 3× “1 29 U.S.C. § 2006 . EPPA provides for both public and private enforcement.”
Gary Lee Watson v. Drummond Co., Inc., 436 F.3d 1310 (11th Cir. 2006). · cites it 4× “§ 2002 ? Second, if so, was its conduct nonetheless permitted under the “ongoing investigation” exemption of 29 U.S.C. § 2006 (d)? And finally, can the Union be sued as an “employer” for the purposes of the EPPA? Each is discussed in turn.”
Wiltshire v. Citibank, 171 Misc. 2d 250 (N.Y. Sup. Ct. 1996). · cites it 10× “Section 7 of the Act ( 29 USC § 2006 ) provides for certain limited exceptions to the absolute bans of section 3.”
Evans v. DeRidder Mun. Fire, 815 So. 2d 61 (La. 2002). “[3] We make no ruling on whether a polygraph is admissible in a civil trial outside the context of an appeal of a Civil Service Board ruling in a Civil Service employee disciplinary proceeding.”
Lyle v. Mercy Hosp. Anderson, 876 F. Supp. 157 (S.D. Ohio 1995). · cites it 4× “See 29 U.S.C. § 2006 . The ongoing investigation exemption states the following: [TJhis 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…”
Darryl N. Veazey v. Commc'ns & Cable of Chicago, Inc., D/B/A Tci Commc'ns, Inc., Chicago Cable Tv, Tci Chicago or Tci-Chicago Cable, 194 F.3d 850 (7th Cir. 1999). “4 Because Veazey’s complaint does not allege that LaSalle was attempting to do anything other than a comparative analysis, the district court correctly found that he failed to state a claim under EPPA. . Despite believing that polygraphs were unreliable, Congress exempted from…”
Hall v. United Parcel Serv. of Am., Inc., 5 I.E.R. Cas. (BNA) 616 (NY 1990). “In situations such as that presented in this case, where "an ongoing investigation involving economic loss” to the employer is involved, polygraph tests may be conducted, but only if certain conditions, including a showing of "reasonable suspicion”, are satisfied ( 29 USC § 2006…”
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