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ti Mees : G eee Declassified in Part - Sanitized Copy Approved for Release 2013/01/02 : CIACR RDP89T00234R000200270027- 8 YS * FS aie we. neat: ty. ~ae eee art tte eRe eae ey a a A << eateta ss Seren eee here sare ae eg a ‘ Central intelligence Agency OCA 2019-88 iG JUN i999 The Honorable James C. Miller, III Director Office of Management and Budget Washington, D.C. 20503 Dear Mr. Miller: This is in response to your request for our views on the enrolled bill H.R. 1212, the "Employee Folygraph Protection Act of 1986." ‘H.R. 1212 severely restricts private sector polygraph use. The sponsors have been careful, however, to make exception for national security uses of the polygraph. These include exceptions for agencies in the Intelligence Community (including the Central Intelligence Agency, the Defense Intelligence Agency, the National Security Agency and the Federal Bureau of Investigation) and for contractors of these agencies and their employees. We commend the Congress for these efforts and we are Satisfied they adequately address the equities of the Intelligence Community. We remain somewhat concerned, however, that the negative atmosphere created by this legislation could impede our future ability to use the polygraph or to recruit and retain competent polygraph personnel. We also do not wish this to Lecome the first step in an assault on our use of the polygraph or in an effort to apply to that use restrictions appropriate only to the private sector. On balance, as the bill makes specific provision for our interests, we would have no objection to a Fresidential approval. We did want to use this opportunity, however, to express our more general concerns about legislation in this area. Thank you for the opportunity to comment on this important piece of legislation. Sincerely, John L. Helgersoh — Dire¢tor of Congressional Affairs Declassified in Part - Sanitized Copy Approved for Release 2013/01/02 : CIA-RDP89T00234R000200270027-8 os we STAT Declassified in Part - Sanitized og Ay alc for Release 2013/01/02 : CIA RDP89T00234R000200270027-8 a SUBJECT: Letter to Mr. Miller (OMB) regarding H.R. 1212 OCA/LEG/ (14 June 1988) Distribution: Original - Addressee D/CCA DDL/OCA OCA Registry ~ EA/DA - ADGC/AL&MS/OGC D/OS OCA/Leg/Subject File: Polygraph Signer PRE RP RE ERY Declassified in Part - Sanitized Copy Approved for Release 2013/01/02 : CIA-RDP89T00234R000200270027-8 OCA Read os STAT STAT LL Declassified in Part - Sanitized Copy Approved for Releas ae Ys *. Sou % ‘ cae Be ae re 7 ; a e 2013/01/02 ; CIA-RDP89T00234R000200270027-8 EXECUTIVE OFFICE OF THE PRESIDENT OFFICE OF MANAGEMENT AND BUDGET WASHINGTON, D.C. 20503 ENROLLED BILL REQUEST June 10, 1988 TO: LEGISLATIVE LIAISON OFFICER: .Dept of Treasury - Carole Toth - 566-8523 Dept of Defense - Samuel Brick, Jr. - 697-1305 Dept of Commerce- Joyce Smith - 377-4264 Dept of Energy- Bob Rabben - 586-6718 Dept of Labor - Nancy Currier - 523-8207 Dept of State - Bronwyn Bochrach - 647-4463 Dept of Transportation- Nancy Duykers - 366-4684 NASA- Toby Costanzo - 453-1941 CIA - John Halgerson - STAT National Security Council- Paul Stevens ~- 456-6534 SUBJECT: ENROLLED BILL - HR 1212 "Employee Polygraph Protection Act of 1988" In accordance with OMB Circular No. A-19, your written views and recommendation for Presidential action are requested on HR 1212 as enrolled. The text of the Conference Report (H.Rept. 100-659) is printed 5/26/88 Congressional Record, pages H3706-3710. Please consult section 10 of OMB Circular No. A-19, pages 12-14, for instructions regarding the preparation of enrolled bill letters and the procedures to be followed on enrolled bills. Within TWO DAYS (including holidays but excluding Sundays) after receipt of this_request, your reply (original and one copy) should be delivered {VIA SPECIAL MESSENGER * to Mrs. Julia yuil1ré; Room? — » ((7201;~New~Executive Office Building:—(In-addition; you may wish to“send:-in-advancé a,;copy of your-views_letter-using telecopier; equipment.) fee ea) ae Your cooperation in meeting this deadline is needed to provide maximum time for Presidential action on the enrolled bill. A regular facsimile of the enrolled bill will be sent to you through the regular messenger service when available. The Yegislative-.attorney-handling-this bill is Branden Blum (39573454) sag me JAMES C. MURR Acting Assistant Director for Legislative Reference Declassified in Part - Sanitized Copy Approved for Release 2013/01/02 : CIA-RDP89T00234R000200270027-8 SSRs Sater . Kasich Rieleon mith, Denny Kemp Ailn (OR) Kolbe Posts Smith, Robert Kyl Pashayasa (NH) LaPalce Patterson Smith, Rodert Latta Petri (OR) lehman (FL) Porter Snowe Lent Pureell Solomon Lewis (FL) Ravene) Stangeland Lightfoot Stenholm Livingston Rhodes Studds Lloyd Ridge Stump Lott Ritter Sundquist Lowery (CA) Roberts Sweeney Lukens, Danalé Rogers Swindall Roth ‘Tallon Madigan Rowland(CT) Tauke Marlenee Raybal Tauzin Martin (TL) Baxton Zaylor McCandless Schaefer - Upton McCrery Schneider Wander Jagt McEwen SBchuette WVisclosky McGrath Schulze WVucanovich McHugh Sensenbrenner Walker McMillan (RT) Sharp Watkins Meyers Shaw Weber Miche? Shays Weldon Miller (OH) Shumwey Whittaker Miller (WA) Shuster Whitten Molinari Skeen Wylie Moorhead — Slaughter (NY) Yates Morrison (WA) Slaughter (VA) YWatron Murphy Smith (LA) Young (FL) Myers Smith (NE) Nagle Smith (TX) NOT VOTING—@ Aspin Garcia Mica Biaggi Gray (IL) Moakley Boland Hansen Mrazck Boulter Hatcher Nichols Brown (CA) Hiler Oakar Bryant Hutto Oxley Bustamante @enkins Quillen Chapman Jones (TN) Rose Coleman(TX) onnyu Roukeme Crate Zancaster Spence Dellums each (1A) &1 Germain Dicks dewis (CA) Weiss Duncan Aaujan Wilson Dwyer Mfack Wolpe Espy MacKay Wortley Florio Martin GY? Gallo McColluna G 1607 The Cterk announcet the following pairs: On this vote: Mr. Mica for, with Mr. Craig agairist. Mr. Oxley for, with Mr. Boulter against. Mrs. Roukema for, with Mr. Hansen against. Mr. Koannyu for, with Mr. Quillen against. Mr. Dellums for, with Mr. Leach of Iowa against. Mr. Chapman for, with Mr. McCollum against. Mr. BATES, Mrs. BOGGS, and Messrs. NAGLE, GLICKMAN, and HUGHES changed their votes from “yea” to “may.” Mr. VOLKMER, Mrs. BENTLEY, Mr. BILTRAKIS, and Mr. SCHEUER changed their votes from “nay” to “yea.” So the conference report was agreed to. The result of the vete was an- nounced as above reeorded. A motion to reconsider was laid on the table. GENERAL LEAVE Mr. GRAY of Pennsylvania. Mr. Speaker, J ask unanimous oonsent that all Members may have 5 legislative days in which to revise and extend their memarks, and to include extrane- ous mabertal, on the conference report on House Concurrent Resdhtian 368. Tee GPEAKER pro tempore. Is there ebjection to the reqacst of the gentieman from Pennayiwani«? There was no objection. FURTHER MESSAGE FROM ‘THE SENATE A further message from the Senate by Mr. Haller, one of its elerks, an- nounced that the Senate had passed with amendments in which the con- currence of the House is requested, bills of the House of une foillowing titles: ZR. 4445. An act to ames title 18, United States Cede, to prohiht eertain fire- arms especially useful to terrorists: and ELR. 4498. An act to designate the Cleve- land Ohio General Mail Factity and Mam Office In Cleveland, OF, as the “John ©. Helly Building ef Che United States Postal Service.” The message also armounced that the Senate had passed aills of the fal- lowing titles, in which the concurrence of the Howse is requested . 425. An act for the relief of Sukhfjit Kaldip Singh Saund; &. 1583. An act far the relief of Maria An- tonieta Heird: 3%. 1842. An act for the relief of Mr. Wil- heim Jahn Schlechter, Mrs. Monica Pino Schiechter, Ingrid Daniela Schiechter, and Arturo David Schlechter, and 8. 1972. An act for the relief of Irma Pur- iseh and Danie! Purisch. CONFERENCE REPORT ON HR.: 1212, EMPLOYEE POLYGRAPH ’ PROTECTION ACT OF 1958 Mr. WILLIAMS submitted the fol- lowing conference report and state- ment on the BI CELRB. 1212) to prevent the denial of employment apportuni- ties by prohibiting the use of lie detec- tors by employers involved in or af- fecting interstate commerce: ‘Oosrrnemcs Ruoror? (8. Rzrr. $60-659) The committee ef comference on the dis- agrecing vates af the two Houses on the amendment of the Senate to the bill) (ALR. 1212) to prevent the denial of empicyment opportunities by prohibitimg the ase of Tie detectors by emptoyers invaived in or affect- tng interstate commerce, hrving roct, after full and free conference, heve agreed te rec- ommend and de recommend to their respec- ‘tive Houses as dobows: That the House recede from Ms disagree ment to the amendment of the Senate to the text of the hill and agree to the samme with an amendment as follows. im lieu ef the matter proposed to be in- serted by the Senate amendment, iesert the folowing: SECTION 1. SHORT TILE. This Act mey be cited a: fhe “Employee Polygraph Protection Act af 1888”. SEC. 2. DEFINITIONS. 4s used in this Act (1) COMMERCE.—The term “oommerce” has the meaning provided by section 3(b) of the Fair Labor Standards Act of 1938 (29 U.S.C. 2031b)). 2) EmPLOYER—The term “employer” tn- cludes any person acting direcily or ¢ndi- rectly in the tuterest of an employer in rela- May $6, 1988 then te an empleyec or prospective eenploy- Mea) dar vevecten,_The term “lie Ostechor” tor, or any other similar device (ahether me- chanical or dlectrical) Dial is used, er fhe re- swt: ef which ave used, for the purpose of dA) records econtinzously, visuallzn, perma- nenly aad staukaneously changes in car- @iovascular, respiratory, and electrodermal patterns as minimum instrumentation standards; and 1B) & wsed, or the results of which are used, for the purpose of rendering a diagnos- tic opinion regardéng the honesty or dishon- eaty of an trdividual 45) Secrevrazri—The term “*Secuetary” means Lhe Secretary ef Labor. SBC. & PROHIBITIONS ON LIE DETECTOR USE. Except as provided in sections 7 andi @, tt shell de unlawfal for ang employer ecupaged tn or affecting commerce or in the groduc- tton of goods for commerce— (1) direclly or tndirectly, to require, re- quest, suggest, or eruse any employee or pro- spective emplopoec ta take or submit to any lie Qetector test 2) to use, eccent, refer to, or tnqguire oon- cerning the results ef any lie detector test of any emploxee er prospective employee; 43) to discharge, disciptine, discrimiaate against in any manner, or deny employment or promotion to, or Mireaten to take any such action against— tA) any employee or prospective employee who refuses, declines, or fails to take or submit to any lie detector test, or 3) eny emplopee or prospective employee — on the basis af She results of any tie detector ' test or (4) to discharge, discipline, discriminate against in any manner, or deny employment or promotion to, or threaten to take any such action against, uny employee or pro- spective employee because— (A) sucht employee or prospective employee hes filed any conmplaint or insittute’’ or caused t Oe insfitated ezy proceeding under or related tx this Act, (B) such employee or prospective employee has testified or is about fo festify im azy such proceeding. or 1C) of the exercise by such employee o7 prospective employee, on behay of such em- ployee or enother person, Ff any righ! af- Sorded by this Act. SEC. 4. NOTICE OF PROTECTION. Whe Secretary shail prepere, have printed, and distribute a motice setteng forth excerpls from, or summoarses ef, the perfiucal provi- sions of this Act. Bock employer shal post and mcinicin such mofice in comspicuous places on its premises where wotices to em- ployees and applicants to employment are customarily posted. SEC. & AUTHORITY @F PRE SECRETARY. (a) In GENERaL.—The Secretary shall— fl) tssue such rules and regulations es may be necessary or appropriate to carry out this AcE @) cooperate with regional, State, tocul, and ather agenctes, and cooperate with and furnish technical assistance to employers, labor organizations, and employment agenr- cies to aid in effectuating the purposes of this Act and ra @) make inzestigations and inspections and require The keeping af records necessary or appropriate for the administration ef thts Act. Declassified in Part - Sanitized Copy Approved for Release 2013/01/02 : CIA-RDP89T00234R000200270027-8 ‘Declassified in Part - Sanitized Copy Approved for Release 2013/01/02 : CiA-F RDP89T00234R000200270027- 8 GOINGRESSIONAL RBCORD —HOUSE ; 1! |' piay 26, 1858 o) SuBPOENA Aterwontry.--Bor the purpose of any hearing or tavestigaéion under this Act, the ashok haww the axthority contained in sections § and 10 of the Feder- al Trade Commetasion Act (15 U.S.C. 49 and 50). SEC. 6. ENFORCEMENT WEDVIBIONS. (a) Crvi. Pemacras.— (1) In GuweEnst.—Saljert t paragraph (2), any employer who violates any provision of - Uris Act may be axsessed @ civil penuity of not more ran $20, 000. (2) DeTERemmaTwon oF amoune.—in deter- mixing the amount ef eny penalty wader peragraph (83, the Secretary shail tuke into account tke previous record af the perzon in terms of compRance with this Act and the gravity af the violation. Cas.ecrion.—Any civil penalty as- sessed under this subsection shall be collect- ed tn Se same manner as is required.by sub- sections fb) through te) af section 503 af 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. (6) MMSUNCTYTGE ACTIONS BY THE SECRE- TARY.—The Secretary may bring an action under this section to restrain violations af this Act. The Solicitor af Labor may appear Sor and represent the Secretary in any Htiga- tion brought under Giis Act. In any action brought ander this section, the district courts of the United Siates shall have juris- diction, for cause shown, to issue temporary or permanent restraining orders and injunc- tions to require compliance with this Act, including such legal or equitable relief inci- dent thereto as may be appropriate, inciud- ing, but not limited to, employment, rein- statement, promotion, and the payment a lost wages and benefits. (c} Private Crvn. ACTIONS.— 3 fl) Bmsimrry.—An employer who violates this Act shall be liable to the employee or prospective employee affected by such viola- tion. Such employer shall be liable for such legal or equitable relief ax may be appropri- ate, including, but wot Limited to, employ- ment, vetnstatement, promotion, and the paymend af lost wages and 2} Courr.—Am action tw recover the iabil- tty prescribed in paragraph (1) may be maintained apatnst the employer in eny. Federal or State court of competent jurisdic- tion by an emptoyee or prospective employee Sor or en Behalf of such employee, prospec- tive employee, and other employees er pro- spective employees similarly situated. No such actton may be commenced more than 3 years after the date of the alleged violction. @) Cosrs.—The court, tn its discretion, may allow the prevailing perty fother than tre Wnited States) reasonable costs, tnclud- ing attorney’s fees. (a) Warvern ov Rraevrs Prowerren.—The rights and procedures provided by @ris Act _ may nol be watved by eortract or othenvise, untess such waiver ts part af « written set- Uement agreed to and' signed by the parties to the pending ection or eomplaint under. thta Act. SEU. 7. EXEMPTIONS. fa) No APPLICATION TO GOVERNMENTAL EM- PLOYERS.—This Act shall not apply with re- spect to tre United States Government, any State or local government, or any political subdivision of a State or local government. 0} NaTYONaL DEFENSE AND SECURYTY EXEMP- TION.— (1) N&TTONAL DEYERSE.—Nothing in this Act shall be construed to prohibit the adminis- tration, by the Federal Government, tn the performance of any eounterintelligence function, of any lie detector test to— (A) eny expert or consultant under con- tract to the Department af Defense or any a epatractor ef sath Dips of any imtelligence or cownterintelligence function, af any lie detector test to— (Ai) omy individual employed by ae signed. to, or detatied to, the Nattonal Secu- rity Apency, the Befense Pntelligence Apency, or the Central Intelligenee Agency, i) any expert or consuliant under con tract to any such agency, (itt) any employee of a contractor to any such agency x) eny individual epplyiag for a posi tion in any such agency, or (2) any individual assigned to @ apace where sensitive eryptologic information is Produced, processed, er stared: fer eng such agency; ar (B) any expert, ar consultant for employee of such expert or consultant) under contract with any Federal Government department, whose duties involve fied at the level of top secret or designated as being within a special access program under section &2(a) af Executive Order 12356 for a successor Executive order). fe) FBI Cowrra tng in this Act shall be construed to prohibit the administration, by the Federal Govern- ment, in the performance of any counterin- tefligence function, of any lie detector test to an employee af a contractor of the Federal Bureau af Investigation of the Department of Justice who is engaged in fe perform- ance of any work under the contract with such Bureau. (ad) Lierrep EXEMPTION FOR ONGOING INVES- TIGATIONS.—Subdject to sections 8 and 10, this Act shall not prohidit an employer from re- questing an employee to submit to a poly- greph test ~— ff) the lest is administered tn connection with an ongoing investigation involving economic Boss or tnjury to the employer's business, such az theft, embdezziement, mis- approprtation, or en act of untawful indus- trial espionage or sabstage; ) the employee had access to the property that ts te subject of the investtgn tion; (3) the employer has a reasonable suspi- cion that the employee was involved in the incident or activity under investigation; ond (#) the employer executes a statement, pro- vided to the eraminee before the test, that and the bests for testing particular employ- cea, 4B) ts signed by a person fother than a polygraph examiner) authorized to leguily * bind the employer, (C) ts vetained. by the employer for at least 3 years, and (D) contains at a minimum— (i) an identification of the specific eco- nomic loss or injury to the business af the employer, fii) a statement indicating that Khe em ployee had access to the property that &% the subject af the investigation, and (ii) a statement describing the basis af the employer's reasonable suspicion that the em- ployee was involved in the incident or activ- tty under tnvestigation. fe) EXmMPTTON POR SEecuRITY SERVICES.— (1) In qxwerat.—Subject to paragraph (2) and sections 8 and 10, this Act shall not pro- CTORS EXEMPTION.—Noth- - eclassified in Part - Sanitized Copy Approved for Release 2013/01/02 : CIA- A-RDP89T00234R000200270027- -8 : \_ UJONGRESSIONAL RECORD — S20GSE - ; 8707 Pk aaa tg hey gyno ttee employes. ‘engaged in the perils ‘installation, end motntemnance af securtiy clarm systems, or other untformed er pieinclofes security personnel end whore fencfton trefades pro- teetion of— (A) facilities, materials, er operations having a stynifteant tmpact on tite heefth or safety of any State or political subdivision thereof, or the navtonal security af the United Stutes, as Getermined under rules and regulations issued by the Secretary within 90 days after the date of the enact- ment of this Act, trcluding— ft) facilities engaged tn the production, transmission, or distribution af electric or nuclear power, (it) public water supply facilities, ; ftit) shipments or storage af radtoactive or other toxic waste materials, and ftv) public transportation, or (B) currency, negotiable securities, pre etous commodities or tnstruments, or fro. prtetary tnformation. (2) ACCESS.—The exemption provided under this subsection shall not apply U the test is administered to a prospective employ- ee who would not be employed to protect JSa- cilities, materials, operations, or assets re- ferred to in paragraph (1). ) Exrurrion ror DroG SEcuRITY, DRUG THEFT, OR DRUG DIVERSION INVESTIGATIONS.— (1) In GENERAL.—Subject to paragraph (2) and sections 8 and 10, this Act shall not pro- hibit the use of a polygraph test by any em- ployer authorized to manufacture, distrib- ute, or dispense a controlled substance listed in schedule I, UW, WT, or Iv of sectton 202 of the Controlled Substances Act (21 U.S.C. 812). (2) ACCESS.—The exemption provided under this subsection shall apply— (A) & the test is administered to a prospec- tive emplayee who would have direct access to the manufacture, storage, distribution, or sale of any such controlled substance; or (B) in the case af a test administered to a current employee, J— (i) the test is administered im eonnection with an ongoing investigntion af criminal or other misconduct? involving, ar petential- ly involving, loss or injury to Me manufoc- ture, distribution, or dispensing af eny such controlled substance by suck emplager, end {ti) the employee had access & the person or property that is the subject af the insesti- gation. . SEC. & RESTRICTIONS OM USK @F EXMMLMPTIONS. fa) Test 46 Bast FOR ADVERSE BMPLOYMENT ACTION.— (I) UNDER GNGOINDG INVESTIGLISONS EXEMP- TIoW.—Except az provided in paragraph (2), the exemption under subsection (i) af sec- tion 7 shall not apply U an employee is dia- against tn any manner on the basis of the analysis of a polygraph test chart er the re- quired by such subsection may serve es addi- tional supporting evidence. 42) UNDER OTHER EXEMPTIONS.—#m She case — of an exemption described in subsection fe) or tf) of such section, the exemption shall not apply Uf the results of an enalysis of a polygraph test chart are used, or the refusal to take a polygraph test 1s used, as the sole basis upon which an adverse employment action described-in paragraph (Tf) ty taken against an empleyee o7 prospective employ- ee. @) Rrauts op EXAMINEE.—The exemptions provided under subsections 4d), te), and (fi | Declassified in Part - Sanitized Copy Approved for Release 2013/01/02 : CIA-RDP89T00234R000200270027-8 . pak Pe if bs i: ef 'Declassified in Part - Sanitized Copy Approved for Release 2013/01/02 : CIA-RDP89T00234R000200270027-8 £4 Aer . A “J . 3 “f CONGRESSIONAL RECORD — HOUSE ‘HST08. of section 7 shall nol apply unless the re- quirements described in the following para- graphs are met: (1) Aut Puases.—Throughout all pheses of the test— (A) the examinee shall be permitted to ter- minate the test at any time; (B) the examinee ts nol asked questions in @ manner designed to degrade, or needlessly intrude on, such examinee; : (C) the examinee ts not asked any question concerning— fi) religious beliefs or affiliations, aes beliefs or opinions regarding racial ma . (tii) political beliefs or affiliations, (tv) any matter relating to sexual dehav- for; and ' (v) beliefs, affiltations, opinions, or lawful activities regarding unions or labor organi- zations; and (D} the examiner does not conduct the test f there ts 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 actual test- ing phase. é (2) PRETEST PHASE.—During the pretest phase, the prospective eraminee— (A) ts provided with reasonable written notice of the date, time, and location af the test, and of such examinee’s right to obtain and consult with legal counsel or an employ- veh representative before each phase of the t: 7 (B) ts informed tn writing of the nature and characteristics of the tests and of the in- struments involved; : (Ci ts informed, in writing— fi) whether the testing area contains a two-way mirror, a camera, or any other device through which the test can be ob- served, tii) whether any other device, including any device for recording or monitoring the test, will be used, or (iti) that the employer or the examinee may (with mutual knowledge) make a re- cording of the test; (D) is read and signs a written notice in- Jorming such eraminee— ; (t) that the examinee cannot be requtred to take the test as @ condition of employment, (ti) that any statement made during the test may constitute additional supporting evidence for the purposes of an adverse em- ployment action described in subsection (a), (iti) af the limitations imposed under this section, (iv) of the legal rights and remedies evail- able to the examinee f the polygraph test is not conducted in accordance with this Act, and (0) of the legal rights and remedies of the “employer under this Act (including the rights of the employer under section 9(c)(2)); and (E) is provided an opportunity to review all questions to be asked during the test and ts informed of the right to terminate the test at any lime. (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 tnterview 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 con- clusion rendered as a result of the test, and fii) a copy of the questions asked during the test along with the corresponding charted responses. 45) MAXIMUM NUMBER AND MINIMUM DURA- YYON OF TEsTs.—The examiner shall not con- duct and complete more than five polygraph tests on a calendar day on which the teat ts given, and shall not conduct any such test Sor less than a 90-minute duration. ; {C) QUALIFICATIONS AND REQUIREMENTS OF EXAMINERS.—The exemptions provided under . subsections (d), (e/, and (f) of section 7 shall : mot apply unles: the individual who con- Gucts the polygraph teat sattafies the require- ments under the following paragraphs: (1) QUALIFICATIONS. —The examiner— fA) has a valid and current Ucense granted by Heensing and regulatory authorities tn the State tn which the teat is to be conduct- ed, Uf 80 required by the State; and {B) maintains a minimum of a $50,000 bond or an equivalent amount of profession- al Hability coverage. (2) REQUIREMENTS.—The examiner— (A) renders any opinion or conclusion re- garding the tesi— (i) in writing and solely on the basis of an analysis of polygraph test charts, (tt) that does not contain information other than admissions, information, case Jacts, and interpretation of the charts rele- vant to the purpose and stated objectives of the test, and (iii) that does not include any recommen- dation concerning the employment of the ex- aminee; and (B) maintains all opinions, reports, charts, written questions, Usts, and other records relating to the test for a minimum period of 3 years after administration of the test. SEC. 9. DISCLOSURE OF INFORMATION. (a) IN GENERAL.—A person, other than the examinee, may not disclose information ob- tained during a polygraph test, except as provided in this section. (oO) PermirTen DIscLosures.—A polygraph examiner may disclose information ac- quired from a polygraph test only to— (1) the examinee or any other person spe- cifically designated in writing by the eram- tnee; ae . (2) the employer that requested the test; or (3) any court, governmental agency, arbdi- trator, or mediator, in accordance with due process of law, pursuant to an order from a court of competent jurisdiction. (c) DISCLOSURE BY EMPLOYER.—An employ- er (other than an employer described in sub- section fa), (b), or (c) of section 7) for whom @ polygraph test is conducted may disclose information from the test only to— (1) @ person in accordance with subsection (0); or (2) @ governmental agency, but only inso- far as the disclosed information is an ad- mission of criminal conduct. SEC. 1@. EFFECT ON OTHER LAW AND AGREEMENTS. Except as provided in subsections (a), (b), and (c) of section 7, this Act shall not pre- empt any provision of any State or local law or of any negotiated collective bargaining agreement that prohibits lie detector tests or ts more restrictive with respect to lie detec- tor tests than any provision of this Act. SEC. 11. EFFECTIVE DATE. fa) In GenxeRAL.—Except as provided in subsection (b), this Act shall become effec- tive 6 months after the date af enactment of this Act. fo) REGuLATIONS.—Not later than 90 days after the date of enactmenit of this Act, the Secretary shali issue such rules and regula- tions as may be necessary or appropriate to carry out this Act And the Senate agree to the same. Avcustus F. HawEKINS, May 26, 1988 Managers on the Part of the House. = Epwanrp M. Exgnnepy, pre MAarTsUNAGA, 1 ).. JeoBeRt T. Starvory, Managers on the Part of the Senate. JOINT EXPLANATORY STATEMENT OF THE COMMITTEE OF CONFERENCE The managers on the part of the House and the Senate at the conference on the dis- agreeing votes of the two Houses on the amendment of the Senate, to the bill (ELR. 1212) to prevent the denial of employment opportunities by prohibiting the use of He detectors by employers involved in or affect- ing interstate commerce, submit the follow- ing joint statement to the House and the Senate in explanation of the effect of the action agreed upon by the managers and recommended in the accompanying confer- ence report: : The Senate amendment struck out all of the House bill after the enacting clause and inserted a substitute text. The House recedes from its disagreement to the amendment of the Senate with an amendment which is a substitute for the House bill and the Senate amendment. The differences between the House bill, the Senate amendment, and the substitute agreed to in conference are noted below, except for clerical corrections, conforming changes made necessary by agreements reached by the conferees, and minor draft- ing and clarifying changes. DEFINITIONS The House bill defines the terms “lie de- tector test,” “employer,” and “commerce.” . The Senate bill defines these terms and others. The conference agreement contains defi- nitions that are generally self-explanatory. However, two points of clarification should be made with respect to the definition of “lie detector” adopted by the conference. First, unlike the House bill and Senate amendment, the conference agreement de- fines not a lie detector test but the device itself. The conferees did so to provide great- er clarity to the definition, and intend that the prohibition on a lie detector test be con- strued broadly to include any use of s lie de- tector. Second, the conference agreement - parallels the House definition of lie detector to prohibit the use of all such devices, whether mechanical or electrical. By declin- ~ ing to include chemical testing. the confer- ees intend that the term “lie detector” does not include medical tests used to determine the presence or absence of controlled sub- stances or alcohol in bodily fluids. The con- ferees also do not intend to include written or oral tests (commonly referred to as “hon- esty” or “paper and pencil” tests) within the definition of lie detector. In distinguishing between the He detector and the polygraph, it is the intent of the conferees to prohibit private employers from using the deceptograph, voice stress analyzer, psychological stress evaluator or any other similar device (whether mechani- cal or electrical) while permitting only the use of the polygraph for those purposes under the special circumstances defined in the Act. PROHIBITIONS ON LIE DETECTOR USE The House bill generally prohibits the use of all types of lie Getectors in private em- ployment settings. Federal, state and local government employers are exempt from this prohibition, as are private contractors en- gaged in intelligence or counterintelligence Declassified in Part - Sanitized Copy Approved for Release 2013/01/02 : CIA-RDP89T00234R000200270027-8 | ‘Declassified in } * eclas May 26, 1988 work. Exployerm providing puivate security gervices, and employers involved in the man- distribution and.dispensing of con- trolled substances, may siso request poly- hb tests under eertain eircumstances. The Benate amendment contains a similar prohibition against lie detector testa. It pro- vides almost identical exemptions for gov- expmenta) and national security ysage, 96 well as for employers providing private secu- rity servieea It also exempts employees or any prospective employeé of a nuclear power plant. Moreever, the Senate amend- ment provides that all employers may re- quest @ polygraph test in connection with an ongoing investigation of a specific inci- dent or activity involving economic loss or jury. The conference agreement retains the ex- emptions for federal, state and local govern- ments. The exemption provided for national security functions specifies that the federal government may administer lie detector tests to certain employees of contractors to various federal agencies engaged in intelli- gence and counterintelligence work. The conference agreement is designed to con- form with the National Defense Authoriza- tion Act for Fiscal Years 1988 and 1989 (ELR. 1748), which restricts such testing to individuals whose duties involve access to top secret or special access program infor- mation. By exempting public sector employers and private contractors engaged in intelligence and counterintelligence functions, the con- ferees recognize the functions performed by these employers are not within the jurisdic- tion of the committees which reported the legislation, and the policy decisions as to the proper or tmproper use of such tests are left o the committees ef jurisdiction and exper- tise. : The conference agreement provides a lim- ited exemption from the general prohibition on lie detectors for the use of polygraphs in connection with an on going investigation invelving economic loss or injury to the em- ployer's business. An employer may request such a test of an employe only when the employee had access to the property and the employer has a rewonable suspicion that the employee was involved.in the incident. The eonference agreement slightly aiters the description ef economic loss to clarify that the examples cited are illustrative and not exhaustive. The conferees do not intend that all losses, such a5 an unintentional eco- nomic loss stemming from a truck or work- place accident, should serve as a pretext for the administration of a polygraph test. Similarly, the economic less incident to law ful unfon or employee activity would not satisfy this standard. There are also specific incidents, such as check-kiting, money laun- dering, or the misappropriation ef inside or confidential Information which would meet required injury Prior to requesting a polygraph test, an employer must execute « statement setting forth with particularity the specific incident or activity being Investigated and the basis for testing & employee. The state- ment must be signed by a person authorised by law to bind the employer amd. must be re- tained by the employer for three years. Ata minimum, the statement must identify the specific loss or. injury to the employer, must deseribe tire employee's access, and must ex- . plain the Basts of the employer's reasonable suspicion thet fe employee was involved in the incident or activity. This statemeni must be: provided ta sur employee pripr to the administration of a test. The conferees intend thet the term “rea- sonable suspicion” refers to some observ- able, articulabie basis in fact beyond the predicate loss and sccess for any testing. This could include such factors as the demeanor of the employee or discrepan- ° cies which arise during the course of ‘an in- vestigation. And while access alone does not constitute a basis for reasonable suspicion, the totality of circumstances surrounding such access, such as its unauthorized or un- usual nature, may constitute an additional | factor. The oonference agreement provides for two additional exceptions from the general prohibition on lie detector tests. Employers engaged in providing certain private secur!- ty services, and employers engaged in manu- facturing, distributing or dispensing con- trolled substances, are not porohibited from using polygraphs for employees or prospec- tive employees if such tests are conducted in accordance with certain restrictions. __ The conferees did not adopt the exemp- tion for employees of a nuclear power facili- ty. Under current-law (PL. 99-399), these employers are already required to finger- print all anescorted personne! in such fa- Cilities. ‘These fingerprints must be submit- ted to the Attorney General of the United States trraugh the Huclear Regulatory Commission for identification and a crimi- nai history records check. The conferees be- lieve that these extensive and unusual re- quirements are much more likely to provide accurate, verifiable information sbout an applicant than. could be obtained from @ lie detector test. NOTICE OP PROTECTION The House bill requires the Secretary of Labor to prepare and distribute a notice re- garding the Act. Employers must post and maintain such notice in a conspicuous place. The Senate amendment is similar. The conference agreement adopts the lan- guage of the Senate amendment. The con- ferees recognize that it is not possible for the Secretary to distribute a notice by mail to each affected employer, but expect that such notices will be made available and the Secretary will take appropriate steps to advise employers of their obligations. ENFORCEMENT PROVISIONS The House bill provides for a penalty for fatiare to post notices, civil penalties of not more than $10,000 for other violations, au- thority for fnjunctive actions by the Secre- tary, and authority fer private civil actions. "The Senate amendment does not provide a separate penalty for failure to post notices, bat is similar to the House bill in other re- spects. The conference agreement does not in- clude a separate penalty for failure to post notices. It does permit the assessment by the Secretary of Labor of a civil penalty of not more than $10,000 for any violation of the Act. The Secretary is also permitted to bring an action for injunctive relief or other legal or equitable relief incident thereto. The Solicitor ef Labor i authorized to appear on behalf of the Secretary in sach proceedings. An employee or prospective employee may bring an action as well, pro- vided it is commenced within three years of the date of the alleged violation. The rights and es afforded under the Act may not be waived unless such waiver is part of & written settlement agreed to and signed by each of the parties to the pending action or complaint. "Fhe conferees intend that the enforce- ment provisions are not to be construed as & limttation pon private actions being brought under current aw. Mothing in the Act is intended to mit the courts fm grant- ing any and all remedies currently. avaliable. . or . ge | cn iz sified in Part - Sanitized it) ig for Release 2013/01/02 : CIA-RDP89T00234R000200270027-8 CONGRESSIONAL RECORD — HOUSE Bi 3789 ‘RESTUICTIONS OF POLYGRAPH USACE Tre House bill stiputates that the results of le detector tests may not be used as the ale basis for an adverse employment action when used th the private security or phar- maceutical industries. The Senate amendment prohibits adverse employment action Based on the results of a poiygraph test, or the refusal to take a poly- graph test, whether in connection with an ongoing investigation or within the private - security industry, -without additional sup- porting evidence. The Senate amendment also requires that an examiner must provide information regarding the detafls of the test and the: examinee’s rights. Finally, the Genate amendment establishes minimum standards for polygraph examiners. The conference agreement provides that the refusal to take a polygraph test, or the results of a polygraph test generally may not serve as the basis for an adverse employ- ment action without additional supporting evidence. Evidence leading to the employer's reasonable suspicion may constitute such additional supporting evidence. In the case of the pharmaceutical and private security industries, the refusal to take s polygraph test or the results of a polygraph test may not serve as the sole basis upon which sn adverse employment action is take against an. employee or prospective employee. The conference agreement provides that prior to the test an examinee must be read and provided in writing a notice including each of the examinee’s rights and the limita- tiens imposed, such as prohibited areas of questioning and restrictiens on the use of test results. The conferees intend that this notice may clear to examinees that admis- sions of criminal conduct made by the ex- aminee may be transmitted to any approp!- rent license ff required by the state in which a test ts to be conducted: they must main- tain a $50,000 bond or equivalent amount of professional Hability coverage, and they must meet certain requirements regarding the nature, form and retention ef opinions and-other records related to the test. DISCLOSURE OF INFORMATION The House bill contains no provision rélat- ing to the disclosure ef information ob- tained during a polygraph test. The Senate amendment restricts the abdili- ty of examiners and employers to disclose such.information. - The conference agreement prohibits ex- aminers and employers fzom disclosing in- formation obtained during a polygraph test by the ex- Part - Sanitized Copy Approved for Release 2013/01/02 : CIA-RDP89T00234R000200270027-8 Paclessinicd in Part - Sanitized eh es aia for Release 2013/01/02 : CIA-RDP89T00234R000200270027-8 ~ -CONGRESSIONAL RECORD — HOUSE H $710. - the employer may not transmit any other information, including opinions, charts, or other records relating to the examination, unless such governmental agency complies with all other provisions of the Act to obtain such information. EFFECT ON OTHER LAWS AND AGREEMENTS The House bill provides that its provisions will not preempt more restrictive provisions found in state or local laws or negotiated agreements. The Senate bill contains similar provi- sions. The conference agreement provides that its provisions will not preempt any provision of state or local law, or any provision of a collective bargaining agreement, that pro- hibits He detector tests or is more restrictive with respect to lie detector tests. The con- ferees intend that this provision apply to all aspects of such tests, including procedural safeguards, the use of test results, the rights and remedies provided examinees, and the rights, remedies, and responsibilities of ex- aminers and employers. For example, more stringent bonding requirements in « state law would preempt the federal bonding re- quirement. State prohibitions on the use of polygraphs in private employment could preempt the limited exemptions provided in this Act. A collective bargaining agreement that provides greater protections to an ex- aminee would take precedence over the cor- relative provisions in this Act. In addition, since the Act does not apply to state and local governments it would not impede their ability to enforce existing statutes or to enact subsequent legislation restricting the use of lie detectors with respect to public employees. . = EFFECTIVE DATE The House bill provides for an effective date six months from the date of enact- ment. The Senate amendment provides for an effective date six months from the date of enactment and provides for all necessary regulations to be issued by the Secretary 120 days from the date of enactment. The conference agreement provides for an effective date six months from the date of enactment, and for the Secretary to issue necessary rules and regulations no later than 90 days from the date of enactment. The -conferees intend that this six-month time period between that date of enactment and the effective date be utilized by the Sec- retary to develop and promulgate regula- tions, and for information regarding the re- quirements of the Act and regulations to be disseminated to affected employees and em- ployers. The conferees do not intend that polygraph examinations be conducted by employers during this time in an effort to administer a greater number of polygraph tests to employees before the effective date of this Act. MEXICAN STEEL LOAN The House bill contains no provision re- garding the World Bank's proposed loan to the Mexican steel industry. The Senate amendment includes a sense of the Senate provision that the World Bank should reject a proposed loan to the Mexican steel industry because it would not be in the best interests of the United States. The conference agreement deletes the sense of the Senate provision. Despite the objections of the Senate, the World Bank approved the Joan to the Mexican steel in- dustry on March 3, 1988. Therefore the pro- vision is moot. The deletion of the provision does not reflect any opinion of the confer- ees regarding this provision. Avcustus F. HAWKINS, Matruew G. MARTINEZ, Declassified in Part - Sanitized Copy Approved for Release 2013/01/02 : CIA-RDP89T00234R000200270027-8 _ Pat Wrisams, s . @m JEProrDé, | Srrvze GuADERSON, . Managers on the part of the House. Epwanrd M. Kerwepy, Howarp M. MerrxnBaum, SPark MATSURAGA, Orrin Harcu, Rosent T. Starrorp, Managers on the part af the Senate. COMMUNICATION FROM CHAIR- MAN OF COMMITTEE ON PUBLIC WORKS AND TRANS- PORTATION The SPEAKER pro tempore laid before the House the following com- munication from the chairman of the Committee on Public Works and Transportation; which was read and, without objection, referred to the Committee on Appropriations: Comrrree ox Pusiic WORKS AND TRANSPORTATION, Washington, DC, May 13, 1988. - Hon. Jma Wriczt, The Speaker, House of Representatives, Washington, DC. Dear Mr. SPEAKER: Pursuant to the provi- sions of the Public Buildings Act of 1959, as amended, the House Committee on Public Works and Transportation approved the fol- lowing projects on May 5, 1988: LEASE PROSPECTUSES Department of the Interior, Fish and Wildlife Service, Washington, D.C. or Northern Virginia. ; Department of Commerce, Census Bureau, Louisville Kentucky/Jeffersonville, IN area. Department of Commerce, Bureau, New York, NY. U.S. Customs Service, Long Beach, CA. Corps of Engineers, Interna] Revenue Service and National Labor Relations Board, Chicago, TL. Foley Square (lease-purchase), Manhat- tan, NY. Census ; CONSTRUCTION U.S. Courthouse and Federal Building, St. Croix, Virgin Islands. ; U.S. Courthouse and Federal Building Annex, Bridgeport, CT. ; A.A. Ribicoff Federal Building and Court- house Annex, Hartford, CT. we Post Office and Courthouse, Camden, US. Courthouse and Federal Building Annex, Trenton, NJ. Federal Building-U.S. Courthouse, Cham- paign-Urbana, IL. Border Station, International Falls, MN. REPAIR AND ALTERATION Prospectus for Design fiscal year 89. PCB Program—(Polychiorinated Biphenyl Abatement), Various Buildings. Automatic Sprinkler Systems, Various Buildings. Elevators—upgrading. Federal Building-Post Office-Courthouse, Juneau, AL. Federal Building, Post Office and Court- house, Pine Bluff, AR. Jacob Weinberger Federal Building, San Diego, CA. Federal Building, Jacksonville, FL. Gene Snyder Courthouse-—Customhouse, Louisville, KY. Hale Boggs Federal Building—U.S. Court- house, New Orleans, LA. John F. Kennedy Federal Building, Boston, MA. : . James ©. Eastland Post Office—US. Courthouse, Jackson, MI. “Federal Records Cehter, 9700 Page Boule- vard, Overland, MO. ae ; Federal Building and U8. Courthouse, Trenton, NJ. Emanuel Celler Federal Building and 0.8. Courthouse, Brooklyn, NY. US. Mission to the United Nations, New York, NY. Kenneth B. Keating Federal Building, Rochester, NY. : Clifford Davis Federal Building, Memphis, IN. U.S. Post Office, Austin, TX. Bob Casey Federal Building, Houston, TX. Federal Building-Courthouse, Lubbock, Tx. = .. Post Office-Courthouse, Salt Lake City, UT. Federal Building, U.S. Post Office and Courthouse, Burlington, VT. US. Courthouse Annex Building, Rich- mond, VA. Federal Building-Courthouse, Milwaukee, WI. Forrestal Building, Washington, DC. General Accounting Office Headquarters Building, Washington, DC. General Services Administration, Head- quarters Building, Washington, DC. Ariel Rios Federal Building, Washington, ve. : 11(B) RESOLUTIONS Boulder, Colorado. Buffalo, New York. Cleveland County, NC. The original and one copy of the suthoriz- ing resolution is enclosed. Sincerely, 7 GLEewK M. ANDERSON, Chairman. There was no objection. PERMISSION FOR MEMBER TO BE COSPONSOR OF H.R. 3807 Mr. KLECZKA. Mr. Speaker, I ask unanimous consent to be made & coau- thor of the bill, H.R. 3807. The SPEAKER pro tempore. Is there objection to the request of the gentleman from Wisconsin? There was no objection. LEGISLATIVE PROGRAM (Mr. MICHEL asked and was given permission to address the House for 1 minute.) Mr. MICHEL. Mr. Speaker, I have asked for this time for the purpose of inquiring of the distinguished majori- ty leader the program for next week after we return from the Memorial Day recess. ‘ Mr. FOLEY. Mr. Speaker, will the distinguished Republican minority leader yield? : Mr, MICHEL. I am happy to yield to the distinguished gentleman from Washington. Mr. FOLEY. Mr. Speaker, I thank the distinguished Republican leader for yielding. We have now concluded the business for the day and for the week, and the House will begin this evening the Me- morial Day recess. On Monday, May 30, the House will not be in session. We will not be in ses- May 26,1988 - ! a A awn i STAT Declassified in Part - Sanitized Copy Approved for Release 2013/01/02 : CIA-RDP89T00234R000200270027-8 ~@& V4 Pod Declassified in Part - Sanitized Copy Approved for Release 2013/01/02 : CIA-RDP89T00234R000200270027-8