How does the federal Employee Polygraph Protection Act affect a Texas polygraph examiner's license?

Texas AG Opinion JM-976: How the Federal Polygraph Law Hits Texas Examiners

Plain-English summary

In 1988 Congress passed the Employee Polygraph Protection Act, a federal law that mostly bans private employers from making job applicants or employees take lie detector tests. It was set to take effect that December, right around the time Texas polygraph examiner licenses come up for annual renewal. The head of the Texas Polygraph Examiners Board wanted to know what the new federal law meant for the licenses his board issues, so he asked the Attorney General four questions.

The first and most practical: does the federal law change the bond or insurance a person needs to get or keep a Texas polygraph license? Texas requires a $5,000 surety bond or insurance policy. The federal law mentions a much bigger number, $50,000. The Attorney General kept the two separate. The federal $50,000 bond requirement is not a licensing requirement at all. It applies only to an examiner who actually tests private-sector employees under one of the federal law's narrow exemptions. If an examiner never does that kind of testing, he never needs the $50,000 bond. So the Board keeps issuing and renewing licenses on the same $5,000 bond as before. The examiner is the one who decides whether he wants to qualify for the private-employer exemption work, and if he does, he has to go get the larger bond or equivalent liability coverage.

The second question was about what the federal phrase "$50,000 bond or an equivalent amount of professional liability coverage" means. The Attorney General agreed it refers to an insurance policy, and explained that "coverage" means the sum of risks the policy covers, citing insurance cases from a few other states. Third, the officer asked what conditions the policy's obligor should carry. Here the Attorney General could only offer general guidance, because the U.S. Secretary of Labor was directed to write regulations that would flesh this out, and those rules had to be consulted once issued. In general, professional liability policies insure against errors and omissions and can exclude coverage for illegal acts.

The fourth question was about enforcement. Is the Texas Board supposed to police the federal law? No. Congress gave enforcement to the U.S. Secretary of Labor, who can investigate, seek civil penalties, and sue to stop violations, and it let affected employees bring their own private lawsuits. None of that runs through the state Board. That said, the Attorney General noted a practical overlap: if a Texas examiner ignores the federal conditions, that behavior might, in a particular case, show "unworthiness or incompetency" to be an examiner, or might also break a matching provision of the Texas act (like the confidentiality rule), either of which could give the Board grounds to discipline the licensee under state law. The Board still has no power to enforce the federal statute directly; it just may consider federal-law violations when deciding state discipline.

Currency note

This opinion was issued in 1988. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Both the federal Employee Polygraph Protection Act (and the Department of Labor regulations implementing it) and the Texas regulation of polygraph examiners have evolved since 1988. The Texas Polygraph Examiners Act cited here (article 4413(29cc), V.T.C.S.) has since been recodified into the Occupations Code, and the licensing structure has changed. Anyone dealing with polygraph testing of employees today should consult the current federal act and Department of Labor rules and the current Texas Occupations Code provisions rather than the article and section numbers used here.

Who this opinion affected (as of 1988)

Licensed polygraph examiners: The opinion told them their Texas license still turned on the $5,000 bond, but that testing private employees under the federal exemptions required meeting federal conditions, including a $50,000 bond or equivalent liability coverage.

The Polygraph Examiners Board: The opinion confirmed the Board keeps licensing on the state bond and has no authority to enforce the federal act, though federal violations may bear on state discipline.

Private employers and their employees: The opinion reflected the new federal ban on most employer lie detector testing and the narrow exemptions and examiner conditions that go with it.

Common questions

Did the federal polygraph law raise the bond needed for a Texas license?
No. In this opinion the Attorney General concluded the federal act did not change Texas licensing requirements; the Board may still issue and renew licenses on the $5,000 state bond. The $50,000 federal bond applies only to examiners testing private employees under the exemptions.

When does an examiner need the $50,000 bond?
Only when the examiner conducts polygraph tests of employees or prospective employees for a private employer under a federal exemption. An examiner who never does that testing does not need it.

Does the Texas Board enforce the federal law?
No. Enforcement belongs to the U.S. Secretary of Labor (investigations, civil penalties, injunctions) and to affected employees through private lawsuits. The Board has no direct authority to enforce the federal act.

Can a federal violation still get an examiner disciplined in Texas?
Possibly. The Attorney General noted that disregarding federal conditions might show "unworthiness or incompetency" under the state act, or might also violate a matching Texas provision, giving the Board grounds for discipline.

Background and statutory framework

The Employee Polygraph Protection Act of 1988 (29 U.S.C. sections 2001-2009), effective December 1988, prohibits private employers engaged in commerce or the production of goods for commerce from requiring any employee or prospective employee to take a lie detector test (section 2002). "Lie detector" includes a polygraph, deceptograph, voice stress analyzer, psychological stress evaluator, or similar device used to render a diagnostic opinion on honesty (section 2001(3)(a)); a polygraph is one kind (section 2001(3)). The act does not apply to federal, state, or local government employees (section 2006), and it exempts federal testing of certain FBI, national-defense, and national-security contractors (section 2006(b), (c)). It also lifts the prohibition for (1) a private employer's ongoing investigation of economic loss or injury, (2) certain security-service providers, and (3) authorized controlled-substance handlers (section 2006(d)-(f)), each permitting only polygraphs and each subject to statutory limits.

The act imposes restrictions protecting the examinee, including limits on questions, the right to terminate the test, a bar on testing where a physician's written evidence shows a condition that might cause abnormal responses, a requirement that questions be provided in writing for review beforehand, and limits of no more than five tests a day and no test shorter than 90 minutes (section 2007). The private-employer exemptions also do not apply unless the examiner (A) holds a license from the state where the test is conducted, if the state requires one, and (B) maintains a minimum $50,000 bond or an equivalent amount of professional liability coverage; and the examiner must render written opinions based solely on chart analysis, without employment recommendations, and keep records for at least three years (section 2007(c)). Except for the governmental and specified federal exemptions in section 2006(a)-(c), the act does not preempt state or local law that prohibits lie detector tests or is more restrictive (section 2009).

On the first question, the Texas Polygraph Examiners Act requires a license applicant to furnish a $5,000 surety bond or insurance policy covering judgments for wrongful or illegal acts in the examiner's examinations (article 4413(29cc), section 8(b)), with a Board rule requiring the bond stay in force for continued licensure. The federal $50,000 bond or equivalent professional liability coverage applies to examiners who test private-employer employees under the section 2006(d), (e), and (f) exemptions; a licensed examiner who never tests under those exemptions does not need it. The federal act does not change Texas licensing requirements; it effectively prevents licensed examiners from testing private-employer employees except under the exemptions and imposes added requirements on those who do. The examiner must decide whether to qualify for that exemption testing and, if so, secure the $50,000 bond or equivalent; the Board's authority to issue or renew a license on the $5,000 state bond is unchanged.

On the second question, the phrase "maintains a minimum of a $50,000 bond or an equivalent amount of professional liability coverage" (section 2007(c)(1)(B)) refers to an insurance policy; "coverage" is the sum of risks an insurance policy covers (Seabaugh v. Sisk, 413 S.W.2d 602, 606 (Mo. App. 1967); Freimuth v. Glens Falls Ins. Co., 314 P.2d 468, 471 (Wash. 1957); D'Angelo v. Cornell Paperboard Products Co., 207 N.W.2d 846, 849 (Wis. 1973)). On the third question, the Secretary of Labor is directed to issue implementing regulations that may address the conditions placed on the obligor, so only general guidance was possible, subject to reevaluation when regulations issue; professional and occupational liability policies insure against error, mistake, or omission and may exclude coverage for an undertaking in violation of law. The House Conference Report indicated the act's enforcement provisions were not intended to limit private actions or the courts' remedies; the professional liability policy's purpose may be to pay damages arising from an examiner's errors, mistakes, or omissions, particularly regarding the requirements the statute imposes.

On the fourth question, section 2004 empowers the Secretary of Labor to investigate, issue subpoenas, and cooperate with state agencies, and section 2005 authorizes the Secretary to seek civil penalties and injunctions and allows a private civil action by an affected employee; neither permits or requires enforcement by the Polygraph Examiners Board. But the federal conditions may bear on Board discipline: a licensee's disregard of federal conditions might demonstrate "unworthiness or incompetency to act as a polygraph examiner" (article 4413(29cc), section 19(7)), and some conduct violating the federal act could also violate the Texas statute (for example, the confidentiality provision, section 19(13)), providing grounds for discipline. The Board has no direct authority to enforce the federal law.

Citations

Statutory authority:

• 29 U.S.C. §§ 2001-2009 (Employee Polygraph Protection Act of 1988)
• 29 U.S.C. § 2002 (prohibition on private-employer lie detector tests)
• 29 U.S.C. § 2006 (exemptions, including government and private-employer exemptions)
• 29 U.S.C. § 2007 (examinee protections; examiner qualifications, including the $50,000 bond)
• Article 4413(29cc), V.T.C.S. § 8(b) (Texas $5,000 licensing bond or insurance)
• Article 4413(29cc), V.T.C.S. § 17 (annual license renewal)
• Article 4413(29cc), V.T.C.S. § 19(7) (discipline for unworthiness or incompetency)
• Article 4413(29cc), V.T.C.S. § 19(13) (discipline for violating the confidentiality provision)

Cases:

• Seabaugh v. Sisk, 413 S.W.2d 602 (Mo. App. 1967)
• Freimuth v. Glens Falls Ins. Co., 314 P.2d 468 (Wash. 1957)
• D'Angelo v. Cornell Paperboard Products Co., 207 N.W.2d 846 (Wis. 1973)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/jim-mattox/jm-976
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1988/jm0976.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor OCR errors may remain; the linked PDF is authoritative.

November 7, 1988

Mr. Bryan M. Perot
Executive Officer
Polygraph Examiners Board
P. O. Box 4087
Austin, Texas 78773

Opinion No. JM-976

Re: Effect of federal Employee Polygraph Protection Act on 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), adopted, 13 Tex. Reg. 2163 (1988) (amending 22 T.A.C. § 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. § 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 results of which are used, for the purpose of rendering a diagnostic opinion regarding the honesty or dishonesty of an individual.

Id. § 2001(3)(a). A polygraph is one kind of lie detector subject to the prohibition of this statute. See id. § 2001(3) (defining "polygraph").

The Employee Polygraph Protection Act does not apply to employees of the United States, any state or local government, or any political subdivision. Id. § 2006. Exemptions permit the federal government to administer a lie detector test to contractors with the Federal Bureau of Investigation and several agencies with responsibilities in the area of national defense or national security. Id. § 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. § 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. § 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. Id. § 2007(b)(1)(A)-(D). The examiner shall not ask any question that was not given to the examinee in writing for review prior to the test. Id. § 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 90-minute period. Id. § 2007(b)(5).

The Employee Polygraph Protection Act also makes the exemptions for private employers contingent upon the polygraph examiner's compliance with the following provisions on qualifications and requirements:

(c) . . . The exemptions provided [for certain private employers] under subsections (d), (e), and (f) of section 7 [29 U.S.C. §§ 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) has a valid and current license granted by 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 $50,000 bond or an equivalent amount of professional liability coverage.

(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 admissions, 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, reports, 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.)

Id. § 2007(c). A polygraph examiner may disclose information acquired from a polygraph test only to specified persons and entities. Id. § 2008. Finally, the federal act states as follows:

Except as provided in subsections (a), (b), and (c) of section 7 [29 U.S.C. § 2006], 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.

Id. § 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), § 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 examinations. Id. A board rule requires that the bond or insurance policy remain in force as a condition to continued licensure. Tex. Polygraph Ex. Bd., 13 Tex. Reg. 831 (1988), supra.

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. § 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.

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 equivalent amount of professional liability coverage. (Emphasis added.)

29 U.S.C. § 2007(c)(1)(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.g., Seabaugh v. Sisk, 413 S.W.2d 602, 606 (Mo. App. 1967); Freimuth v. Glens Falls Ins. Co., 314 P.2d 468, 471 (Wash. 1957); D'Angelo v. Cornell Paperboard 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. § 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., reprinted 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. §§ 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 conditions required under federal law might demonstrate "unworthiness or incompetency to act as a polygraph examiner." V.T.C.S. art. 4413(29cc), § 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. See id. § 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 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, a licensed polygraph examiner may not conduct examinations 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.

JIM MATTOX
Attorney General of Texas

MARY KELLER
First Assistant Attorney General

LOU MCCREARY
Executive Assistant Attorney General

JUDGE ZOLLIE STEAKLEY
Special Assistant Attorney General

RICK GILPIN
Chairman, Opinion Committee

Prepared by Susan L. Garrison
Assistant Attorney General