EPPA polygraph exemption for air-cargo security

U.S. Department of Labor
Employment Standards Administration
Wage and Hour Division
Washington, D.C. 20210

January 13, 2009

FIELD ASSISTANCE BULLETIN No. 2009-1

MEMORANDUM FOR REGIONAL ADMINISTRATORS
DISTRICT DIRECTORS

FROM: ALEXANDER J. PASSANTINO
Acting Administrator

SUBJECT: Application of the Employee Polygraph Protection Act (EPPA) to Security Personnel Working for Air Cargo Companies.

This memorandum is to advise staff of a change in the application of the partial exemption provided for security services under section 7(e) of the Employee Polygraph Protection Act (EPPA). Section 7(e) authorizes the use of polygraph tests (but no other lie detector) under certain circumstances for certain prospective employees by certain private employers whose primary business purpose is to provide armored car, security alarm, and security guard services related to the protection of “[f]acilities, materials, or operations having a significant impact on the health or safety of any State or political subdivision thereof, or the national security of the United States.” 29 C.F.R. § 801.14(a)(1). “The specific ‘facilities, materials, or operations’ contemplated by this exemption include those against which acts of sabotage, espionage, terrorism, or other hostile, destructive, or illegal acts could significantly impact on the general public's safety or health, or national security.” 29 C.F.R. § 801.14(d)(2).

In Wage and Hour Opinion Letter October 27, 1992, the Wage and Hour Division (WHD) previously determined that the 7(e) exemption does not apply to security services provided to air-cargo transporters for the purpose of preventing drug smuggling by use of air-cargo planes. Although WHD agrees with the letter’s conclusion to the extent that it applies to security services provided with the sole intent of preventing drug smuggling, we now clarify that the exemption may apply, under certain circumstances, to security services provided to air cargo transporters. It is clear that the use of airplanes to perpetrate acts of terrorism can significantly impact public safety, health and national security. Therefore, the 7(e) exemption may apply to security services provided to air cargo transporters if they are intended, in part, to safeguard against hijacking of air-cargo planes, as this would constitute an act of sabotage, espionage, terrorism, or other hostile, destructive, or illegal act that could significantly impact the general public's safety, health, or national security. Accordingly, to the extent that it is inconsistent with this Field Assistance Bulletin, Wage and Hour Opinion Letter October 27, 1992, is withdrawn.

The official PDF also contains the 1992 opinion letter and a routing email; those enclosures are omitted here.