§2007 Restrictions on Use of Exemptions

Summary

Employers may not take negative job actions like firing, disciplining, refusing to hire or promote, or otherwise treating someone unfairly just because of a polygraph test result or because the person refused the test, unless there is other supporting evidence beyond the test itself. For certain narrow exceptions, the test result or refusal still cannot be the only reason for an adverse employment action. To use a polygraph under those exceptions, the test must follow many rules. The person can stop the test at any time. Questions must not be degrading or about religion, race, politics, sexual behavior, or union activities. Tests must be postponed if a doctor says the person has a medical or psychological condition that could affect results. Before testing, the person must get written notice of the time and place and the right to talk with a lawyer or representative, be told what the test involves and whether it may be observed or recorded, review the questions, and sign a notice saying the test is voluntary and that any statements could be used as supporting evidence. No new questions may be asked during the test that were not shown beforehand. Before any adverse action, the employer must further interview the person and give copies of the examiner’s written opinion, the questions, and the charted responses. An examiner may give no more than five tests in a day, must spend at least 90 minutes on each test, be licensed if required, carry at least $50,000 in bond or liability coverage, base written opinions only on chart analysis (without employment recommendations), and keep all test records for at least 3 years.