(a) A civil money penalty in an amount not to exceed $10,000 for any
violation may be assessed against any employer for:
(1) Requiring, requesting, suggesting or causing an employee or
prospective employee to take a lie detector test or using, accepting,
referring to or inquiring about the results of any lie detector test of
any employee or prospective employee, other than as provided in the Act
or this part;
(2) Taking an adverse action or discriminating in any manner against
any employee or prospective employee on the basis of the employee's or
prospective employee's refusal to take a lie detector test, other than
as provided in the Act or this part;
(3) Discriminating or retaliating against an employee or prospective
employee for the exercise of any rights under the Act;
(4) Disclosing information obtained during a polygraph test, except
as authorized by the Act or this part;
(5) Failing to maintain the records required by the Act or this
part;
(6) Resisting, opposing, impeding, intimidating, or interfering with
an official of the Department of Labor during the performance of an
investigation, inspection, or other law enforcement function under the
Act or this part; or
(7) Violating any other provision of the Act or this part.
(b) In determining the amount of penalty to be assessed for any
violation of the Act or this part, the Administrator will consider the
previous record of the employer in terms of compliance with the Act and
regulations, the gravity of the violations, and other pertinent factors.
The matters which may be considered include, but are not limited to, the
following:
(1) Previous history of investigation(s) or violation(s) of the Act
or this part;
(2) The number of employees or prospective employees affected by the
violation or violations;
(3) The seriousness of the violation or violations;
(4) Efforts made in good faith to comply with the provisions of the
Act and this part;
(5) If the violations resulted from the actions or inactions of an
examiner, the steps taken by the employer to ensure the examiner
complied with the Act and the regulations in this part, and the extent
to which the employer could reasonably have foreseen the examiner's
actions or inactions;
(6) The explanation of the employer, including whether the
violations were the result of a bona fide dispute of doubtful legal
certainty;
(7) The extent to which the employee(s) or prospective employee(s)
suffered loss or damage;
(8) Commitment to future compliance, taking into account the public
interest and whether the employer has previously violated the provisions
of the Act or this part.
[56 FR 9064, Mar. 4, 1991; 56 FR 14469, Apr. 10, 1991]
