(a) The pretest phase consists of the questioning and other
preparation of the prospective examinee before the actual use of the
polygraph instrument. During the initial pretest phase, the examinee
must be:
(1) Provided with written notice, in a language understood by the
examinee, as to when and where the examination will take place and that
the examinee has the right to consult with counsel or an employee
representative before each phase of the test. Such notice shall be
received by the examinee at least forty-eight hours, excluding weekend
days and holidays, before the time of the examination, except that a
prospective employee may, at the employee's option, give written consent
to administration of a test anytime within 48 hours but no earlier than
24 hours after receipt of the written notice. The written notice or
proof of service must set forth the time and date of receipt by the
employee or prospective employee and be verified by his or her
signature. The purpose of this requirement is to provide a sufficient
opportunity prior to the examination for the examinee to consult with
counsel or an employee representative. Provision shall also be made for
a convenient place on the premises where the examination will take place
at which the examinee may consult privately with an attorney or an
employee representative before each phase of the test. The attorney or
representative may be excluded from the room where the examination is
administered during the actual testing phase.
(2) Informed orally and in writing of the nature and characteristics
of the polygraph instrument and examination, including an explanation of
the physical operation of the polygraph instrument and the procedure
used during the examination.
(3) Provided with a written notice prior to the testing phase, in a
language understood by the examinee, which shall be read to and signed
by the examinee. Use of appendix A to this part, if properly completed,
will constitute compliance with the contents of the notice requirement
of this paragraph. If a format other than in appendix A is used, it must
contain at least the following information:
(i) Whether or not the polygraph examination area contains a two-way
mirror, a camera, or other device through which the examinee may be
observed;
(ii) Whether or not any other device, such as those used in
conversation or recording will be used during the examination;
(iii) That both the examinee and the employer have the right, with
the other's knowledge, to make a recording of the entire examination;
(iv) That the examinee has the right to terminate the test at any
time;
(v) That the examinee has the right, and will be given the
opportunity, to review all questions to be asked during the test;
(vi) That the examinee may not be asked questions in a manner which
degrades, or needlessly intrudes;
(vii) That the examinee may not be asked any questions concerning
religious beliefs or opinions; beliefs regarding racial matters;
political beliefs or affiliations; matters relating to sexual behavior;
beliefs, affiliations, opinions, or lawful activities regarding unions
or labor organizations;
(viii) That the test may not be conducted 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 examination;
(ix) That the test is not and cannot be required as a condition of
employment;
(x) That the employer may not discharge, dismiss, discipline, deny
employment or promotion, or otherwise discriminate against the examinee
based on the analysis of a polygraph test, or based on the examinee's
refusal to take such a test, without additional evidence which would
support such action;
(xi)(A) In connection with an ongoing investigation, that the
additional evidence required for the employer to
take adverse action against the examinee, including termination, may be
evidence that the examinee had access to the property that is the
subject of the investigation, together with evidence supporting the
employer's reasonable suspicion that the examinee was involved in the
incident or activity under investigation;
(B) That any statement made by the examinee before or during the
test may serve as additional supporting evidence for an adverse
employment action, as described in paragraph (a)(3)(x) of this section,
and that any admission of criminal conduct by the examinee may be
transmitted to an appropriate government law enforcement agency;
(xii) That information acquired from a polygraph test may be
disclosed by the examiner or by the employer only:
(A) To the examinee or any other person specifically designated in
writing by the examinee to receive such information;
(B) To the employer that requested the test;
(C) To a court, governmental agency, arbitrator, or mediator
pursuant to a court order;
(D) To a U.S. Department of Labor official when specifically
designated in writing by the examinee to receive such information;
(E) By the employer, to an appropriate governmental agency without a
court order where, and only insofar as, the information disclosed is an
admission of criminal conduct;
(xiii) That if any of the examinee's rights or protections under the
law are violated, the examinee has the right to file a complaint with
the Wage and Hour Division of the U.S. Department of Labor, or to take
action in court against the employer. Employers who violate this law are
liable to the affected examinee, who may recover such legal or equitable
relief as may be appropriate, including, but not limited to, employment,
reinstatement, and promotion, payment of lost wages and benefits, and
reasonable costs, including attorney's fees. The Secretary of Labor may
also bring action to obtain compliance with the Act, and may assess
civil money penalties against the employer;
(xiv) That the examinee has the right to obtain and consult with
legal counsel or other representative before each phase of the test,
although the legal counsel or representative may be excluded from the
room where the test is administered during the actual testing phase.
(xv) That the employee's rights under the Act may not be waived,
either voluntarily or involuntarily, by contract or otherwise, except as
part of a written settlement to a pending action or complaint under the
Act, agreed to and signed by the parties.
(b) During the initial or any subsequent pretest phases, the
examinee must be given the opportunity, prior to the actual testing
phase, to review all questions in writing that the examiner will ask
during each testing phase. Such questions may be presented at any point
in time prior to the testing phase.
