Untitled Texas Attorney General Opinion ( 1988 )

November 7, 1988
Mr. Bryan M. Perot Opinion Ro. JR-976
Executive Officer
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 re-
sults of which are used, for the purpose .of
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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 govern-
ment, 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 Investiga-
tion 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. & § 200:Af;Ll)(A)-(D). The examiner
shall not ask 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:
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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--
, (A) ha
license g:anted Vby 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
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 admis-
sions, 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, re-
ports, 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.)
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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 examina-
tions. Id. A board rule requires that the bond or insurance
policy remain in force as a condition to continued licen-
sure. 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.
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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 language refers to an
insurance policy.
- "Coverage" is the 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. COS, 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 A.L.R. 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.
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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 condi-
tions required under federal law might demonstrate "un-
worthiness 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
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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, licensed
polygraph examiner may not conduEt examina-
tions 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.
J ~
Very truly yo ,
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
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