                      November 7, 1988



Mr. Bryan M. Perot           Opinion Ro. JR-976
Executive Officer
Polygraph Examiners Board    Re: Effect of federal Employee
P. 0. Box 4087               Polygraph  Protection   Act on
Austin, Texas   70773        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), adonted,   13 Tex. Reg. 2163    (1988) (amending 22
T.A.C.   s 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. 5 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 re-
        sults of which are used, for the purpose .of




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Mr. Bryan M. Perot - Page 2   (JM-976)




        rendering a diagnostic opinion regarding    the
        honesty or dishonesty of an individual.

14L. S 2001(3~). A polygraph  is one kind of lie      detector
subject to the prohibition     of this statute.       Seeid.
5 2001(3) (defining llpolygraphll).

     The Employee Polygraph Protection Act does not apply to
employees of the United States, any state or local govern-
ment, or any political subdivision.   IgL B 2006. Exemptions
permit the federal government   to administer a lie detector
test to contractors with the Federal Bureau of Investiga-
tion and several agencies with responsibilities in the area
of national defense or national    security. Xdz    5 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. 5 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. g 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. &     § 200:Af;Ll)(A)-(D).   The examiner
shall not ask any question            was not given to the
examinee in writing   for review prior to the test. &
§ 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 go-minute period. Id. 5 2007(b)(5).

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




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Mr. Bryan M. Perot - Page 3   (JM-976)




           (c) . . . The exemptions    provided  [for
        certain private employers] under subsections
        Cd), (e), and (f) of section 7 [29 U.S.C.
        S§ 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) ha
                license g:anted Vby 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
                  0.000 bond or an eauivalent  amount
                pi nrofessional liabilitv coverau e.

              (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 admis-
                       sions, 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,   re-
                ports, 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.)




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Mr.   Bryan M. Perot - Page 4   (JM-976)




L    S 2007 (~1.   A   Polygraph    examiner  may   disclose
information acquired from a polygraph test only to specified
persons and entities. L     5 2008. Finally, the federal act
states as follows:

            Except as provided     in subsections (a),
         (b), and (c) of section 7 129 U.S.C. 5 20061,
         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.

IpL 5 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),
5 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 examina-
tions. Id. A board rule requires that the bond or insurance
policy remain in force as a condition to continued     licen-
sure. Tex. Polygraph Ex. Bd., 13 Tex. Reg. 831        (1988),
sunra.

      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. 8 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.




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Mr. Bryan M. Perot - Page 5   (JM-976)




     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 eauivalent amount of nrofessional  1 i-
                                                    a
        bilitv coveracre. (Emphasis added.)

29 U.S.C. 5 2007(c)(l)(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.a., Seabauah v. Sisk, 413
S.W.2d 602, 606   (MO. App. 1967); Jreimuth  v. Glens Falls
Ins. COS, 314 P.2d 468, 471      (Wash. 1957); D'Anaelo v.
Cornell Panerboard 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.
5 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 ALR 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.



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Mr. Bryan M. Perot - Page 6   (JM-976)




renrinted 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. 5s 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 condi-
tions required under federal law might demonstrate       "un-
worthiness or incompetency to act as a polygraph   examiner."
V.T.C.S. art. 4413(29cc),  5 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.   m    .&   5 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




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Mr. Bryan M. Perot - Page 7   (JM-976)




           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,        licensed
           polygraph examiner may not conduEt     examina-
           tions 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.




                                 J ~
                                   Very truly yo    ,


                                       i-l
                                 -J I M    MiTTOX
                                  Attorney General of Texas

MARYEELLER
First Assistant Attorney General

MU'MCCREARY
Executive Assistant Attorney General

JUDGE ZOLLIE STEAELEY
Special Assistant Attorney General

RICK GILPIN
Chairman, Opinion Committee

Prepared by Susan L. Garrison
Assistant Attorney General




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