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EMPLOYEE POLYGRAPH PROTECTION Summary Section 204 of the Congressional Accountability Act (CAA) applies certain rights and protections of the Employee Polygraph Protection Act of 1988 (EPPA) to covered employees. These rights and protections generally provide that no employing office, irrespective of whether a covered employee works in that office, may require or request that any covered employee or prospective employee take a lie detector test, or using the results of any lie detector test of any employee or prospective employee. The CAA requires the Board to issue regulations
that must ordinarily be the same as the This summary describes the EPPA rights and protections applied by the CAA, followed by questions and answers and regulations issued by the Board. 1. Coverage The covered employees and employing offices subject generally to the CAA are described in the Introductory section. The term "lie detector" includes 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 giving a diagnostic opinion regarding the honesty or dishonesty of an individual. The term "lie detector"
does not include medical tests used to determine the presence or
absence of controlled substances or alcohol in bodily fluids. Nor
does the term "lie detector" 3. Prohibition on the Use of Lie Detector Tests Except as allowed by specific exemptions (described below), employing offices are prohibited from:
These prohibitions apply regardless of whether
the covered employee works in the employing The statute and the Board's regulations create several exemptions, including:
Where polygraph tests are allowed (other than in the intelligence context or by the Capitol Police), the CAA subjects such tests to strict standards concerning conduct and length of the test and use of results, and the examinees have a number of rights, including the right to notice before testing and the right to refuse or discontinue a test. 5. Waivers Prohibited The CAA makes applicable a provision of the EPPA prohibiting certain waivers. Under this provision, the rights and procedures of the EPPA, as made applicable by the CAA, may not be waived by contract or otherwise, unless the waiver is part of a written settlement agreed to and signed by the parties to a pending action or complaint. 6. Intimidation or Reprisal Intimidation, reprisal, or discrimination against a covered employee for opposing practices or for initiating or participating in a proceeding is prohibited, as described in the Introductory section. 7. Remedies In case of a violation, the law provides these remedies:
A description of the generally applicable remedies (attorneys fees, interest) and limitations (no civil penalties or punitive damages) is found in the Introductory section. Questions and Answers 1. Q. What does the term "lie detector" mean? A. The term "lie detector" means 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, to render a diagnostic opinion regarding the honesty or dishonesty of an individual. The term "lie detector" does not include medical tests that are used to determine the presence or absence of controlled substances or alcohol in bodily fluids. Nor does the term "lie detector" include written or oral tests commonly referred to as "honesty" or "paper and pencil" tests (machine-scored or otherwise), and graphology tests commonly referred to as handwriting tests. 2. Q. What does the term "polygraph" mean? A. The term "polygraph" means an instrument that records continuously, visually, permanently, and simultaneously any changes in cardiovascular, respiratory, and electrodermal patterns, and is used, or the results of which are used, to render a diagnostic opinion regarding the honesty or dishonesty of an individual. 3. Q. Are employing offices allowed to use lie detector tests? A. Employing offices are prohibited from:
4. Q. May an employing office request an employee who does not work in that office to submit to a lie detector test? A. No. The above prohibitions on the use of lie detector tests by an employing office apply regardless of whether the covered employee works in the employing office engaging in the prohibited activity. 5. Q. How does section 204 of the CAA affect other laws or agreements governing the use of lie detector tests? A. Section 204 of the CAA does not preempt any otherwise applicable provision of federal law, or any rule or regulation of the House or Senate, or any negotiated collective bargaining agreement that prohibits lie detector tests or is more restrictive with respect to the use of lie detector tests. 6. Q. Are there any exceptions to the general prohibition against the use of lie detector tests? A. Yes, the statute and the regulations create four exceptions to the general prohibition on the use of lie detector tests by employing offices:
7. Q. What are the rights of an employee who is requested to submit to a lie detector test under the ongoing investigation or controlled substances exceptions? A. During all phases of polygraph testing the employee being examined has the following rights:
8. Q. How long should records be kept? A. Records should be kept for a minimum of three years from the date the polygraph test is conducted, or from the date the test is requested if no test is ever conducted. Specifically, each employing office that requests an employee to submit to a polygraph test in connection with an ongoing investigation involving economic loss or injury shall retain a copy of the statement that sets forth the specific incident under investigation, and the basis for testing that particular employee. In addition, each examiner retained to administer tests shall maintain all opinions, reports, charts, written questions, lists, and other records relating to polygraph tests of such persons. 9. Q May information obtained during a polygraph test be disclosed? A. Unauthorized disclosure of any information obtained during a polygraph test by any person, other than the examinee is prohibited, except as follows: (a) a polygraph examiner or an employing office may disclose information acquired from a polygraph test only to the examinee or an individual specifically designated by the employee to receive such information, the employing office that requested the polygraph test, any court, governmental agency, arbitrator, or mediator; (b) an employing office may disclose information from the polygraph test at any time to a governmental agency, without a court order, where the information disclosed is an admission of criminal conduct; (c) a polygraph examiner may disclose test charts, without identifying information, to other examiners for examination and analysis, under specific conditions.
The Congressional Accountability Act of 1995: Extension of Rights and Protections Under the Employee Polygraph Protection Act of 1988 NOTICE OF ADOPTION OF REGULATION AND SUBMISSION FOR APPROVAL AND ISSUANCE OF INTERIM REGULATIONS SUMMARY: The Board of Directors, Office of Compliance, after considering comments to its Notice of Proposed Rulemaking published November 28, 1995 in the Congressional Record, has adopted, and is submitting for approval by the Congress, final regulations implementing Sections 204(a) and (b) of the Congressional Accountability Act of 1995 ("CAA"). The Board is also adopting and issuing such regulations as interim regulations for the House of Representatives, the Senate and the employing offices of the instrumentalities effective on January 23, 1996 or on the dates upon which appropriate resolutions of approval are passed, whichever is later. The interim regulations shall expire on April 15, 1996 or on the dates on which appropriate resolutions concerning the Board's final regulations are passed by the House and the Senate, respectively, whichever is earlier. FOR FURTHER INFORMATION CONTACT: Executive Director, Office of Compliance, Room LA 200, Library of Congress, Washington, D.C. 20540-1999. Telephone: (202) 724-9250. SUPPLEMENTARY INFORMATION: Background and Summary The Congressional Accountability Act of 1995 ("CAA"), P.L. 104-1, 109 Stat. 3, was enacted on January 23, 1995. 2 U.S.C. §§ 1301-1438. In general, the CAA applies the rights and protections of eleven federal labor and employment statutes to covered employees and employing offices within the legislative branch. Section 204(a) of the CAA provides that no employing office may require any covered employee (including a covered employee who does not work in that employing office) to take a lie detector test where such test would be prohibited if required by an employer under paragraphs (1), (2) or (3) of section 3 of the Employee Polygraph Protection Act of 1988, 29 U.S.C. § 2002(1), (2) or (3) ("EPPA"). 2 U.S.C. § 1314(a). Section 204(a) of the EPPA also applies the waiver provisions of section 6(d) of the EPPA (29 U.S.C. § 2005(d)) to covered employees. Id. Section 225(f) of the CAA provides that, "[e]xcept where inconsistent with definitions and exemptions provided in this Act, the definitions and exemptions [of the EPPA] shall apply under this Act." 2 U.S.C. § 1361(f)(1). Section 204(c) of the CAA requires the Board of Directors of the Office of Compliance issue regulations implementing the section. 2 U.S.C. § 1314(c). Section 204(c) further states that such regulations "shall be the same as substantive regulations promulgated by the Secretary of Labor to implement the statutory provisions referred to in subsections (a) and (b) except insofar as the Board may determine, for good cause shown and stated together with the regulation, that a modification of such regulations would be more effective for the implementation of the rights and protections under this section." Id. To obtain input from interested persons on the content of these regulations, the Board published for comment a Notice of Proposed Rulemaking in the Congressional Record 141 Cong. Rec. S17656 (daily ed., Nov. 28, 1995) ("NPR"), inviting comments from interested parties regarding the proposed regulations. The Board received three comments on the proposed regulations from interested parties. Two of the comments, without elaboration, supported the regulations as proposed. Only one commenter took issue with certain sections of the proposed regulations and the Board's resolution of certain issues raised in the NPR. In addition, the Office has sought consultations with the Secretary of Labor regarding the proposed regulations, pursuant to section 304(g) of the CAA. After full consideration of the comments received in response to the proposed rule, the Board has adopted and is submitting these final regulations for approval by the Congress. Moreover, pursuant to sections 411 and 304, the Board is also adopting and issuing such regulations as interim regulations for the House, the Senate and the employing offices of the instrumentalities effective on January 23, 1996 or on the dates upon which appropriate resolutions of approval are passed, whichever is later. The interim regulations shall expire on April 15, 1996 or on the dates on which appropriate resolutions concerning the Board's final regulations are passed by the House and the Senate, respectively, whichever is earlier. I. Summary of Comments and Board's Final Rules A. Exemption for national defense and security. One commenter suggested that proposed section 1.11, implementing the national defense and security exemption, be modified. The commenter suggested that, as proposed, the regulatory exemption for national defense and security could be construed to permit claims by employees that an employing office violated section 204 of the CAA by conveying information that ultimately led to a lie detector test, even though the subsequent law enforcement investigation was outside of that employing office's control. Moreover, the commenter argued that proposed section 1.11(d), which states that the Executive Branch must administer the tests "in accordance with applicable Department of Defense directives and regulations," should be deleted since administration of such tests by the Executive Branch is outside of the control of employing offices. Finally, this commenter argued that proposed section 1.11 should refer to all of the exemptions under section 7(b) of the EPPA, not just to subsection (b)(2) of section 7 of the EPPA. Contrary to the commenter's concern, section 1.11(d) cannot reasonably be construed to permit claims by employees that the employing office has violated section 204 of the CAA merely by conveying information to law enforcement authorities. Section 1.11 of the regulation states that lie detector tests performed by the Federal Government in the performance of any intelligence or counterintelligence function are not within any of the prohibitions of section 204 of the CAA. Thus, if the conditions of section 1.11 are met, no employing office should be held liable under section 204 of the CAA for indirectly causing the Executive Branch to perform such tests by conveying a report to Federal Government intelligence or counterintelligence officers. Moreover, section 1.4(b) of the regulations makes it clear that employing offices will ordinarily not be liable under section 204 of the CAA for making reports to law enforcement authorities or for cooperating in law enforcement investigations. Nor is the Board inclined to modify the requirement in section 1.11(d) that any tests administered under the national security exemption be in accordance with applicable Department of Defense directives and regulations. That requirement is taken verbatim from the identical Executive Branch regulations that are applicable to private sector employers who also have no control over the requirements of the Department of Defense directives and regulations. The Board has not been presented with any reason that would constitute "good cause" to deviate from these provisions. Finally, the Board was not provided with sufficient information to determine whether the portions of the Secretary's regulation implementing section 7(b) of the EPPA that were not included in proposed section 1.11 are applicable to the legislative branch. However, out of an abundance of caution, the Board's final regulation shall include, with appropriate modifications, the entirety of the implementing regulation, as suggested by the commenter. B. Exemption for employees of the Capitol Police. The commenter also stated that section 1.4(e) of the regulations, which provides that the Capitol Police may administer lie detector tests to non-Capitol Police employees only during the course of an "ongoing investigation" by the Capitol Police, is not authorized by the CAA. The Board disagrees. Section 204(a)(3) gives the Board authority to adopt limitations on the nature and scope of lie detector use by the Capitol Police. This is such a provision. Contrary to the commenter's suggestion, this regulation strikes an appropriate balance between giving the Capitol Police authority to use lie detector tests for legitimate law enforcement purposes and protecting against overbroad and unreasonable use of lie detector tests by the Capitol Police with respect to covered employees not employed by it. Specifically, section 1.4(e) of the regulation makes it clear that the regulation excluding the Capitol Police from section 204 of the CAA with respect to its own employees is not a total exemption of the Capitol Police from the prohibitions on the employment-related use of lie detector tests. It prohibits employing offices other than the Capitol Police from avoiding the prohibitions of section 204 of the CAA by administering lie detector tests on their covered employees indirectly through the Capitol Police under circumstances where such tests would not be warranted by legitimate law enforcement investigative considerations. C. Confidentiality provisions and notice to examinees A commenter argued that the Board lacks authority to promulgate regulations implementing the confidentiality and notice provisions of sections 9 and 10 of the EPPA. The commenter rested its argument on the fact that sections 9 and 10 of the EPPA are not textually incorporated into section 204 of the CAA. The Board reads the statute differently. Section 204(a) provides that no employing office may require a covered employee to take a lie detector test where an employer would be prohibited from requiring such a test under paragraphs (1), (2) or (3) of section 3 of the EPPA, 29 U.S.C. § 2002(1), (2) or (3). Section 3 of the EPPA in turn provides that, except as provided in sections 7 and 8 of the EPPA (29 U.S.C. §§ 2006 and 2007), it shall be unlawful for an employer to require a lie detector test under paragraphs (1), (2) or (3); and the use of exemptions under section 7 of the EPPA are conditioned on employer compliance with the confidentiality and notice provisions of sections 9 and 10 of the EPPA. Thus, those provisions are incorporated by reference into section 204 of the CAA. See also section 225(f)(1) of the CAA (except where inconsistent with definitions and exemptions provided in the CAA, the definitions and exemptions under the laws made applicable by the CAA apply under the CAA). D. Technical and nomenclature changes A commenter suggested a number of technical and nomenclature changes to the proposed regulations. The Board has incorporated many of the changes suggested by the commenter. However, by making these changes, the Board does not intend a substantive difference between the meaning of these sections of the regulations and the regulations of the Secretary from which the Board's regulations are derived. E. Scope of Regulations The regulations issued by the Board herein are on all matters for which section 204 of the CAA requires a regulation to be issued. Specifically, it is the Board's considered judgment, based on the information available to it at the time of promulgation of these regulations, that, with the exception of the regulations adopted and set forth herein, there are no other "substantive regulations promulgated by the Secretary of Labor to implement the statutory provisions referred to in subsections (a) and (b) [of section 204 of the CAA]." CAA Section 204(c). II. Adoption of Proposed Rules as Final Regulations under Section 304(b)(3) and as Interim Regulations Having considered the public comments to the proposed rules, the Board pursuant to section 304(b)(3) and (4) of the CAA is adopting these final regulations and transmitting them to the House and the Senate with recommendations as to the method of approval by each body under section 304(c). However, the rapidly approaching effective date of the CAA's implementation necessitates that the Board take further action with respect to these regulations. For the reasons explained below, the Board is also today adopting and issuing these rules as interim regulations that will be effective as of January 23, 1996 or the time upon which appropriate resolutions of approval of these interim regulations are passed by the House and/or the Senate, whichever is later. These interim regulations will remain in effect until the earlier of April 15, 1996 or the dates upon which the House and Senate complete their respective consideration of the final regulations that the Board is herein adopting. The Board finds that it is necessary and appropriate to adopt such interim regulations and that there is "good cause" for making them effective as of the later of January 23, 1996, or the time upon which appropriate resolutions of approval of them are passed by the House and the Senate. In the absence of the issuance of such interim regulations, covered employees, employing offices, and the Office of Compliance staff itself would be forced to operate in regulatory uncertainty. While section 411 of the CAA provides that, "if the Board has not issued a regulation on a matter for which this Act requires a regulation to be issued, the hearing officer, Board, or court, as the case may be, shall apply, to the extent necessary and appropriate, the most relevant substantive executive agency regulation promulgated to implement the statutory provision at issue in the proceeding," covered employees, employing offices and the Office of Compliance staff might not know what regulation, if any, would be found applicable in particular circumstances absent the procedures suggested here. The resulting confusion and uncertainty on the part of covered employees and employing offices would be contrary to the purposes and objectives of the CAA, as well as to the interests of those whom it protects and regulates. Moreover, since the House and the Senate will likely act on the Board's final regulations within a short period of time, covered employees and employing offices would have to devote considerable attention and resources to learning, understanding, and complying with a whole set of default regulations that would then have no future application. These interim regulations prevent such a waste of resources. The Board's authority to issue such interim regulations derives from sections 411 and 304 of the CAA. Section 411 gives the Board authority to determine whether, in the absence of the issuance of a final regulation by the Board, it is necessary and appropriate to apply the substantive regulations of the executive branch in implementing the provisions of the CAA. Section 304(a) of the CAA in turn authorizes the Board to issue substantive regulations to implement the Act. Moreover, section 304(b) of the CAA instructs that the Board shall adopt substantive regulations "in accordance with the principles and procedures set forth in section 553 of title 5, United States Code," which have in turn traditionally been construed by courts to allow an agency to issue "interim" rules where the failure to have rules in place in a timely manner would frustrate the effective operation of a federal statute. See, e.g., Philadelphia Citizens in Action v. Schweiker, 669 F.2d 877 (3d Cir. 1982). As noted above, in the absence of the Board's adoption and issuance of these interim rules, such a frustration of the effective operation of the CAA would occur here. In so interpreting its authority, the Board recognizes that in section 304 of the CAA, Congress specified certain procedures that the Board must follow in issuing substantive regulations. In section 304(b), Congress said that, except as specified in section 304(e), the Board must follow certain notice and comment and other procedures. The interim regulations in fact have been subject to such notice and comment and such other procedures of section 304(b). In issuing these interim regulations, the Board also recognizes that section 304(c) specifies certain procedures that the House and the Senate are to follow in approving the Board's regulations. The Board is of the view that the essence of section 304(c)'s requirements are satisfied by making the effectiveness of these interim regulations conditional on the passage of appropriate resolutions of approval by the House and/or the Senate. Moreover, section 304(c) appears to be designed primarily for (and applicable to) final regulations of the Board, which these interim regulations are not. In short, section 304(c)'s procedures should not be understood to prevent the issuance of interim regulations that are necessary for the effective implementation of the CAA. Indeed, the promulgation of these interim regulations clearly conforms to the spirit of section 304(c) and, in fact promotes its proper operation. As noted above, the interim regulations shall become effective only upon the passage of appropriate resolutions of approval, which is what section 304(c) contemplates. Moreover, these interim regulations allow more considered deliberation by the House and the Senate of the Board's final regulations under section 304(c). The House has in fact already signaled its approval of such interim regulations both for itself and for the instrumentalities. On December 19, 1995, the House adopted H. Res. 311 and H. Con. Res. 123, which approve "on a provisional basis" regulations "issued by the Office of Compliance before January 23, 1996." The Board believes these resolutions are sufficient to make these interim regulations effective for the House on January 23, 1996, though the House might want to pass new resolutions of approval in response to this pronouncement of the Board. To the Board's knowledge, the Senate has not yet acted on H. Con. Res. 123, nor has it passed a counterpart to H. Res. 311 that would cover employing offices and employees of the Senate. As stated herein, it must do so if these interim regulations are to apply to the Senate and the other employing offices of the instrumentalities (and to prevent the default rules of the executive branch from applying as of January 23, 1996). III. METHOD OF APPROVAL The Board received no comments on the method of approval for these regulations. Therefore, the Board continues to recommend that (1) the version of the regulations that shall apply to the Senate and employees of the Senate should be approved by the Senate by resolution; (2) the version of the regulations that shall apply to the House of Representatives and employees of the House of Representatives should be approved by the House of Representatives by resolution; and (3) the version of the regulations that shall apply to other covered employees and employing offices should be approved by the Congress by concurrent resolution. With respect to the interim version of these regulations, the Board recommends that the Senate approve them by resolution insofar as they apply to the Senate and employees of the Senate. In addition, the Board recommends that the Senate approve them by concurrent resolution insofar as they apply to other covered employees and employing offices. It is noted that the House has expressed its approval of the regulations insofar as they apply to the House and its employees through its passage of H. Res. 311 on December 19, 1995. The House also expressed its approval of the regulations insofar as they apply to other employing offices through passage of H. Con. Res. 123 on the same date; this concurrent resolution is pending before the Senate.
APPLICATION OF RIGHTS AND PROTECTIONS OF THE EMPLOYEE POLYGRAPH PROTECTION ACT OF 1988 SUBPART A -- GENERAL §1.1 Purpose and scope.
§1.10 Exclusion for employees of the Capitol
Police. [Reserved] SUBPART C -- RESTRICTIONS ON POLYGRAPH USAGE UNDER EXEMPTIONS §1.20Adverse employment action under ongoing
investigation exemption. SUBPART D -- RECORDKEEPING AND DISCLOSURE REQUIREMENTS §1.30Records to be preserved for 3 years. SUBPART E -- DURATION OF INTERIM RULES §1.40 Duration of Interim Rules Appendix A - Notice to Examinee
SUBPART A -- General Sec. 1.1 Purpose
and scope. Subpart A contains the provisions generally applicable to covered employers, including the requirements relating to the prohibitions on lie detector use. Subpart B sets forth rules regarding the statutory exemptions from application of section 204 of the CAA. Subpart C sets forth the restrictions on polygraph usage under such exemptions. Subpart D sets forth the rules on recordkeeping and the disclosure of polygraph test information. Sec. 1.2 Definitions.
(2) The term lie detector does not include medical
tests used to determine the presence or absence of controlled substances
or alcohol in bodily fluids. Also not included in the definition
of lie detector are written or oral tests commonly referred to as
"honesty" or "paper and pencil" tests, machine-scored
or otherwise; and graphology tests commonly referred to as handwriting
tests. (1) Records continuously, visually, permanently, and simultaneously changes in cardiovascular, respiratory, and electrodermal patterns as minimum instrumentation standards; and (2) 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. Sec. 1.4 Prohibitions
on lie detector use. (1) Requiring, requesting, suggesting or causing, directly or indirectly, any covered employee or prospective employee to take or submit to a lie detector test; (2) Using, accepting, or inquiring about the results of a lie detector test of any covered employee or prospective employee; and (3) Discharging, disciplining, discriminating
against, denying employment or promotion, or threatening any covered
employee or prospective employee to take such action for refusal
or failure to take or submit to such test, or on the basis of the
results of a test. Sec. 1.5 Effect
on other laws or agreements. (2) For example, a collective bargaining agreement that provides greater protection to an examinee would apply in addition to the protection provided in section 204 of the CAA. Sec. 1.6 Notice
of protection. Sec. 1.7 Authority
of the Board. Sec. 1.8 Employment
relationship. SUBPART B -- Exemptions Sec. 1.10 Exclusion for employees of the
Capitol Police. Sec. 1.11 Exemption
for national defense and security. Sec. 1.12 Exemption
for employing offices conducting investigations of economic loss
or injury. (1) The test is administered in connection with an ongoing investigation involving economic loss or injury to the employing office's operations, such as theft, embezzlement, misappropriation or an act of unlawful industrial espionage or sabotage; (2) The employee had access to the property that is the subject of the investigation; (3) The employing office has a reasonable suspicion that the employee was involved in the incident or activity under investigation; (4) The employing office provides the examinee with a statement, in a language understood by the examinee, prior to the test which fully explains with particularity the specific incident or activity being investigated and the basis for testing particular employees and which contains, at a minimum: (i) An identification with particularity of the
specific economic loss or injury to the operations of the employing
office; (iii) A description in detail of the basis of the employing office's reasonable suspicion that the employee was involved in the incident or activity under investigation; and (iv) Signature of a person (other than a polygraph examiner) authorized to legally bind the employing office; and (5) The employing office retains a copy of the
statement and proof of service described in paragraph (a)(4) of
this section for at least 3 years. (ii) Direct loss or injury includes losses or injuries resulting from theft, embezzlement, misappropriation, espionage or sabotage. These examples, cited in the EPPA, are intended to be illustrative and not exhaustive. Another specific incident which would constitute direct economic loss or injury is the misappropriation of confidential or trade secret information. (iii) Indirect loss or injury includes the use of an employing office's operations to commit a crime, such as check-kiting or money laundering. In such cases, the ongoing investigation must be limited to criminal activity that has already occurred, and to use of the employing office's operations (and not simply the use of the premises) for such activity. For example, the use of an employing office's vehicles, warehouses, computers or equipment to smuggle or facilitate the importing of illegal substances constitutes an indirect loss or injury to the employing office's business operations. Conversely, the mere fact that an illegal act occurs on the employing office's premises (such as a drug transaction that takes place in the employing office's parking lot or rest room) does not constitute an indirect economic loss or injury to the employing office. (iv) Indirect loss or injury also includes theft or injury to property of another for which the employing office exercises fiduciary, managerial or security responsibility, or where the office has custody of the property (but not property of other offices to which the employees have access by virtue of the employment relationship). For example, if a maintenance employee of the manager of an apartment building steals jewelry from a tenant's apartment, the theft results in an indirect economic loss or injury to the employer because of the manager's management responsibility with respect to the tenant's apartment. A messenger on a delivery of confidential business reports for a client firm who steals the reports causes an indirect economic loss or injury to the messenger service because the messenger service is custodian of the client firm's reports, and therefore is responsible for their security. Similarly, the theft of property protected by a security service employer is considered an economic loss or injury to that employer. (v) A theft or injury to a client firm does not constitute an indirect loss or injury to an employing office unless that employing office has custody of, or management, or security responsibility for, the property of the client that was lost or stolen or injured. For example, a cleaning contractor has no responsibility for the money at a client bank. If money is stolen from the bank by one of the cleaning contractor's employees, the cleaning contractor does not suffer an indirect loss or injury. (vi) Indirect loss or injury does not include loss or injury which is merely threatened or potential, e.g., a threatened or potential loss of an advantageous business relationship. (2) Economic losses or injuries which are the result of unintentional or lawful conduct would not serve as a basis for the administration of a polygraph test. Thus, apparently unintentional losses or injuries stemming from truck, car, workplace, or other similar type accidents or routine inventory or cash register shortages would not meet the economic loss or injury requirement. Any economic loss incident to lawful union or employee activity also would not satisfy this requirement. (3) It is the operations of the employing office
which must suffer the economic loss or injury. Thus, a theft committed
by one employee against another employee of the same employing office
would not satisfy the requirement. (2) As used in section 7(d)(2), property refers
to specifically identifiable property, but also includes such things
of value as security codes and computer data, and proprietary, financial
or technical information, such as trade secrets, which by its availability
to competitors or others would cause economic harm to the employing
office. (2) For example, in an investigation of a theft of an expensive piece of jewelry, an employee authorized to open the establishment's safe no earlier than 9 a.m., in order to place the jewelry in a window display case, is observed opening the safe at 7:30 a.m. In such a situation, the opening of the safe by the employee one and one-half hours prior to the specified time may serve as the basis for reasonable suspicion. On the other hand, in the example given, if the employee is asked to bring the piece of jewelry to his or her office at 7:30 a.m., and the employee then opened the safe and reported the jewelry missing, such access, standing alone, would not constitute a basis for reasonable suspicion that the employee was involved in the incident unless access to the safe was limited solely to the employee. If no one other than the employee possessed the combination to the safe, and all other possible explanations for the loss are ruled out, such as a break-in, a basis for reasonable suspicion may be formulated based on sole access by one employee. (3) The employing office has the burden of establishing
that the specific individual or individuals to be tested are "reasonably
suspected" of involvement in the specific economic loss or
injury for the requirement in section 7(d)(3) of the EPPA to be
met. (2) The statement required under paragraph (a)(4)
of this section must be received by the employee at least 48 hours,
excluding weekend days and holidays, prior to the time of the examination.
The statement must set forth the time and date of receipt by the
employee and be verified by the employee's signature. This will
provide the employee with adequate pre-test notice of the specific
incident or activity being investigated and afford the employee
sufficient time prior to the test to obtain and consult with legal
counsel or an employee representative. (4) It is further required that the statement
provided to the examinee be signed by the employing office, or an
employee or other representative of the employing office with authority
to legally bind the employing office. The person signing the statement
must not be a polygraph examiner unless the examiner is acting solely
in the capacity of an employing office with respect to his or her
own employees and does not conduct the examination. The standard
would not be met, and the exemption would not apply if the person
signing the statement is not authorized to legally bind the employing
office. (1) A prospective employee who would have direct access to the manufacture, storage, distribution, or sale of any such controlled substance; or (2) A current employee if the following conditions are met: (i) The test is administered in connection with an ongoing investigation of criminal or other misconduct involving, or potentially involving, loss or injury to the manufacture, distribution, or dispensing of any such controlled substance by such employing office; and (ii) The employee had access to the person or
property that is the subject of the investigation. (2) The exemption in section 7(f) of the EPPA
applies only to employing offices that are authorized by DEA to
manufacture, distribute, or dispense a controlled substance. Section
202 of the Controlled Substances Act (21 U.S.C. § 812) requires
every person who manufactures, distributes, or dispenses any controlled
substance to register with the Attorney General (i.e., with DEA).
Common or contract carriers and warehouses whose possession of the
controlled substance is in the usual course of their business or
employment are not required to register. Truck drivers and warehouse
employees of the persons or entities registered with DEA and authorized
to manufacture, distribute, or dispense controlled substances, are
within the scope of the exemption where they have direct access
or access to the controlled substances, as discussed below. (1) A prospective employee would have "direct access" if the position being applied for has responsibilities which include contact with or which affect the disposition of a controlled substance, including participation in the process of obtaining, dispensing, or otherwise distributing a controlled substance. This includes contact or direct involvement in the manufacture, storage, testing, distribution, sale or dispensing of a controlled substance and may include, for example, packaging, repackaging, ordering, licensing, shipping, receiving, taking inventory, providing security, prescribing, and handling of a controlled substance. A prospective employee would have "direct access" if the described job duties would give such person access to the products in question, whether such employee would be in physical proximity to controlled substances or engaged in activity which would permit the employee to divert such substances to his or her possession. (2) A current employee would have "access"
within the meaning of section 7(f) if the employee had access to
the specific person or property which is the subject of the on-going
investigation, as discussed in Sec. 1.12(e) of this part. Thus,
to test a current employee, the employee need not have had "direct"
access to the controlled substance, but may have had only infrequent,
random, or opportunistic access. Such access would be sufficient
to test the employee if the employee could have caused, or could
have aided or abetted in causing, the loss of the specific property
which is the subject of the investigation. For example, a maintenance
worker in a drug warehouse, whose job duties include the cleaning
of areas where the controlled substances which are the subject of
the investigation were present, but whose job duties do not include
the handling of controlled substances, would be deemed to have "access",
but normally not "direct access", to the controlled substances.
On the other hand, a drug warehouse truck loader, whose job duties
include the handling of outgoing shipment orders which contain controlled
substances, would have "direct access" to such controlled
substances. A pharmacy department in a supermarket is another common
situation which is useful in illustrating the distinction between
"direct access" and "access." Store personnel
receiving pharmaceutical orders, i.e., the pharmacist, pharmacy
intern, and other such employees working in the pharmacy department,
would ordinarily have "direct access" to controlled substances.
Other store personnel whose job duties and responsibilities do not
include the handling of controlled substances but who had occasion
to enter the pharmacy department where the controlled substances
which are the subject of the investigation were stored, such as
maintenance personnel or pharmacy cashiers, would have "access."
Certain other store personnel whose job duties do not permit or
require entrance into the pharmacy department for any reason, such
as produce or meat clerks, checkout cashiers, or baggers, would
not ordinarily have "access." However, any current employee,
regardless of described job duties, may be polygraphed if the employing
office's investigation of criminal or other misconduct discloses
that such employee in fact took action to obtain "access"
to the person or property that is the subject of the investigation
-- e.g., by actually entering the drug storage area in violation
of company rules. In the case of "direct access", the
prospective employee's access to controlled substances would be
as a part of the manufacturing, dispensing or distribution process,
while a current employee's "access" to the controlled
substances which are the subject of the investigation need only
be opportunistic. (1) Current employees may only be administered polygraph tests in connection with an ongoing investigation of criminal or other misconduct, relating to a specific incident or activity, or potential incident or activity. Thus, an employing office is precluded from using the exemption in connection with continuing investigations or on a random basis to determine if thefts are occurring. However, unlike the exemption in section 7(d) of the EPPA for employing offices conducting ongoing investigations of economic loss or injury, the section 7(f) exemption includes ongoing investigations of misconduct involving potential drug losses. Nor does the latter exemption include the requirement for "reasonable suspicion" contained in the section 7(d) exemption. Thus, a drug store operator is permitted to polygraph all current employees who have access to a controlled substance stolen from the inventory, or where there is evidence that such a theft is planned. Polygraph testing based on an inventory shortage of the drug during a particular accounting period would not be permitted unless there is extrinsic evidence of misconduct. (2) In addition, the test must be administered in connection with loss or injury, or potential loss or injury, to the manufacture, distribution, or dispensing of a controlled substance. (i) Retail drugstores and wholesale drug warehouses typically carry inventory of so-called health and beauty aids, cosmetics, over-the-counter drugs, and a variety of other similar products, in addition to their product lines of controlled drugs. The noncontrolled products usually constitute the majority of such firms' sales volumes. An economic loss or injury related to such noncontrolled substances would not constitute a basis of applicability of the section 7(f) exemption. For example, an investigation into the theft of a gross of cosmetic products could not be a basis for polygraph testing under section 7(f), but the theft of a container of valium could be. (ii) Polygraph testing, with respect to an ongoing
investigation concerning products other than controlled substances
might be initiated under section 7(d) of the EPPA and Sec. 1.12
of this part. However, the exemption in section 7(f) of the EPPA
and this section is limited solely to losses or injury associated
with controlled substances.
Sec. 1.20 Adverse employment action under ongoing investigation exemption. (a) Section 8(a) (1) of the EPPA provides that
the limited exemption in section 7(d) of the EPPA and Sec. 1.12
of this part for ongoing investigations shall not apply if an employing
office discharges, disciplines, denies employment or promotion or
otherwise discriminates in any manner against a current employee
based upon the analysis of a polygraph test chart or the refusal
to take a polygraph test, without additional supporting evidence.
(1)(i) Evidence indicating that the employee had access to the missing or damaged property that is the subject of an ongoing investigation; and (ii) Evidence leading to the employing office's reasonable suspicion that the employee was involved in the incident or activity under investigation; or (2) Admissions or statements made by an employee
before, during or following a polygraph examination. Sec. 1.21 Adverse
employment action under controlled substance exemption. Sec. 1.22 Rights
of examinee - general. (1) The examinee may terminate the test at any
time. (3) The examinee may not be asked any questions
dealing with: (iii) Political beliefs or affiliations; (iv) Sexual preferences or behavior; or (v) Beliefs, affiliations, opinions, or lawful activities concerning unions or labor organizations. (4) The examinee may not be subjected to a test when there is sufficient written evidence by a physician that the examinee is suffering from any medical or psychological condition or undergoing any treatment that might cause abnormal responses during the actual testing phase. "Sufficient written evidence" shall constitute, at a minimum, a statement by a physician specifically describing the examinee's medical or psychological condition or treatment and the basis for the physician's opinion that the condition or treatment might result in such abnormal responses. (5) An employee or prospective employee who exercises
the right to terminate the test, or who for medical reasons with
sufficient supporting evidence is not administered the test, shall
be subject to adverse employment action only on the same basis as
one who refuses to take a polygraph test, as described in Secs.
1.20 and 1.21 of this part. Sec. 1.23 Rights
of examinee - pretest phase. (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 employing office 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 employing office 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 employing office 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 employing office'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 employing office only: (A) To the examinee or any other person specifically designated in writing by the examinee to receive such information; (B) To the employing office that requested the test; (C) To a court, governmental agency, arbitrator, or mediator pursuant to a court order; (D) By the employing office, 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 take action against the employing office under sections 401-404 of the CAA. Employing offices that 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; (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 CAA
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 CAA, agreed to and signed by the parties.
Sec. 1.24 Rights
of examinee -- actual testing phase. Sec. 1.25 Rights
of examinee -- post-test phase. (1) Further interview the examinee on the basis of the test results; and (2) Give to the examinee a written copy of any opinions or conclusions rendered in response to the test, as well as the questions asked during the test, with the corresponding charted responses. The term "corresponding charted responses" refers to copies of the entire examination charts recording the employee's physiological responses, and not just the examiner's written report which describes the examinee's responses to the questions as "charted" by the instrument. Sec. 1.26 Qualifications
of and requirements for examiners. (2) Carry a minimum bond of $50,000 provided
by a surety incorporated under the laws of the United States or
of any State, which may under those laws guarantee the fidelity
of persons holding positions of trust, or carry an equivalent amount
of professional liability coverage. (3) Administer no polygraph examination subject to the provisions of the EPPA which is less than ninety minutes in duration, as described in Sec. 1.24(b) of this part; and (4) Render any opinion or conclusion regarding truthfulness or deception in writing. Such opinion or conclusion must be based solely on the polygraph test results. The written report shall not contain any information other than admissions, information, case facts, and interpretation of the charts relevant to the stated purpose of the polygraph test and shall not include any recommendation concerning the employment of the examinee. (5) Maintain all opinions, reports, charts, written questions, lists, and other records relating to the test, including, statements signed by examinees advising them of rights under the CAA (as described in section 1.23(a)(3) of this part) and any electronic recordings of examinations, for at least three years from the date of the administration of the test. (See section 1.30 of this part for recordkeeping requirements.)
Sec. 1.30 Records
to be preserved for 3 years. (1) Each employing office that requests an employee to submit to a polygraph examination in connection with an ongoing investigation involving economic loss or injury shall retain a copy of the statement that sets forth the specific incident or activity under investigation and the basis for testing that particular covered employee, as required by section 7(d)(4) of the EPPA and described in 1.12(a)(4) of this part. (2) Each examiner retained to administer examinations pursuant to any of the exemptions under section 7(d), (e) or (f) of the EPPA (described in sections 1.12 and 1.13 of this part) shall maintain all opinions, reports, charts, written questions, lists, and other records relating to polygraph tests of such persons. Sec. 1.35 Disclosure
of test information. (1) The examinee or an individual specifically designated in writing by the examinee to receive such information; (2) The employing office that requested the polygraph test pursuant to the provisions of the EPPA (including management personnel of the employing office where the disclosure is relevant to the carrying out of their job responsibilities); (3) Any court, governmental agency, arbitrator,
or mediator pursuant to an order from a court of competent jurisdiction
requiring the production of such information; SUBPART E -- DURATION OF INTERIM REGULATIONS Sec. 1.40 Duration of Interim Regulations
Section 204 of the Congressional Accountability Act, which applies the rights and protections of section 8(b) of the Employee Polygraph Protection Act to covered employees and employing offices, and the regulations of the Board of Directors of the Office of Compliance (Sections 1.22, 1.23, 1.24, and 1.25), require that you be given the following information before taking a polygraph examination: 1. (a) The polygraph examination area [does]
[does not] contain a two-way mirror, a camera, or other device through
which you may be observed. 2. (a) You have the right to terminate the test
at any time. 3. (a) The test is not and cannot be required
as a condition of employment. (2) Any statement made by you before or during the test may serve as additional supporting evidence for an adverse employment action, as described in 3(b) above, and any admission of criminal conduct by you may be transmitted to an appropriate government law enforcement agency. 4. (a) Information acquired from a polygraph test may be disclosed by the examiner or by the employing office only: (1) To you or any other person specifically designated in writing by you to receive such information; (2) To the employing office that requested the test; (3) To a court, governmental agency, arbitrator,
or mediator that obtains a court order. 5. If any of your rights or protections under the law are violated, you have the right to take action against the employing office by filing a request for counseling with the Office of Compliance under section 402 of the Congressional Accountability Act. Employing offices that 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. 6. Your rights under the CAA 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 CAA, and agreed to and signed by the parties. I acknowledge that I have received a copy of the above notice, and that it has been read to me.
_________________________
The Congressional Accountability Act of 1995: Extension of Rights and Protections Under the Employee Polygraph Protection Act of 1988 -- Exclusion of Capitol Police NOTICE OF ADOPTION OF REGULATION AND SUBMISSION FOR APPROVAL AND ISSUANCE OF INTERIM REGULATIONS SUMMARY: The Board of Directors, Office of Compliance, after considering comments to its Notice of Proposed Rulemaking published September 28, 1995 in the Congressional Record, has adopted, and is submitting for approval by the Congress, a final regulation authorizing the Capitol Police to use lie detector tests under Section 204(a)(3) and (c) of the Congressional Accountability Act of 1995 ("CAA"). The Board is also adopting and issuing such regulations as interim regulations effective on January 23, 1996 or on the dates upon which appropriate resolutions of approval are passed, whichever is later. The interim regulations shall expire on April 15, 1996 or on the dates on which appropriate resolutions concerning the Board's final regulations are passed by the House of Representatives and the Senate, respectively, whichever is earlier. FOR FURTHER INFORMATION CONTACT: Executive Director, Office of Compliance, Room LA 200, Library of Congress, Washington, D.C. 20540-1999. Telephone: (202) 724-9250. SUPPLEMENTARY INFORMATION: Background and Summary The Congressional Accountability Act of 1995 ("CAA"), Pub. L. 104-1, 109 Stat. 3, was enacted on January 23, 1995. 2 U.S.C. §§ 1301 et seq. In general, the CAA applies the rights and protections of eleven federal labor and employment law statutes to covered employees and employing offices within the legislative branch. Section 204(a) of the CAA provides that no employing office, irrespective of whether a covered employee works in that employing office, may require a covered employee to take a lie detector test where such a test would be prohibited if required by an employer under paragraphs (1), (2) or (3) of section 3 of the Employee Polygraph Protection Act of 1988, 29 U.S.C. § 2002(1), (2) or (3) ("EPPA"). 2 U.S.C. § 1314(a). Section 204(a) of the CAA also applies the waiver provision of section 6(d) of the EPPA (29 U.S.C. § 2005(d)) to covered employees. Id. Section 225(f) (1) provides that, "[e]xcept where inconsistent with definitions and exemptions provided in this Act, the definitions and exemptions in the [EPPA] shall apply under this Act." 2 U.S.C. § 1361(f)(1). Section 204(c) authorizes the Board of Directors of the Office of Compliance ("Board") established under the CAA to issue regulations implementing the section. 2 U.S.C. § 1314(c). Section 204(c)(2) further states that such regulations "shall be the same as substantive regulations promulgated by the Secretary of Labor to implement the statutory provisions referred to in subsections (a) and (b) except insofar as the Board may determine, for good cause shown and stated together with the regulation, that a modification of such regulations would be more effective for the implementation of the rights and protections under this section." Id. Section 204(a)(3) provides that nothing in this section shall preclude the Capitol Police from using lie detector tests in accordance with regulations issued under section 204(c) of the CAA. Id. The provisions of section 204 are effective January 23, 1996, one year after the enactment date of the CAA. The Capitol Police is the primary law enforcement agency of the legislative branch. See 40 U.S.C. § 212a et seq. The final regulation would provide the Capitol Police with specific authorization to use lie detector tests. The final regulation is derived from the Secretary of Labor's regulation implementing the exclusion for public sector employers under Section 7(a) of the EPPA, 29 U.S.C. § 2006(a) (29 C.F.R. § 801.10(d)), which limits the exclusion to the entity's own employees. To obtain input from interested persons on the content of these regulations, the Board published for comment a Notice of Proposed Rulemaking in the Congressional Record on September 28, 1995, 141 Cong. Rec. S14544 (daily ed., Sept. 28, 1995). The Office has also consulted with the Secretary of Labor under section 304(g) of the CAA. After full consideration of the comments received in response to the proposed rule, the Board has adopted and is submitting this final regulation for approval by the Congress. Moreover, pursuant to sections 304 and 411 of the CAA, the Board is adopting and issuing such regulations effective on January 23, 1996 or on the dates upon which appropriate resolutions of approval are passed, whichever is later. The interim regulations shall expire on April 15, 1996 or on the dates on which appropriate resolutions concerning the Board's final regulations are passed by the House of Representatives and the Senate, respectively, whichever is earlier. The regulations issued by the Board herein are on all matters for which section 204(a)(3) of the CAA requires a regulation to be issued. I. Summary and Consideration of Comments On September 28, 1995, the Board published a Notice of Proposed Rulemaking in the Congressional Record, 141 Cong. Rec. S14544 (daily ed., Sept. 28, 1995) ("NPR"), inviting comments from interested parties regarding the proposed regulation. The Board received three comments on the proposed regulation from interested parties within the House and the Senate. A. Summary of Comments. Another commenter asked that the Board further explain the basis for its proposed regulation. Specifically, this commenter asked the Board to reconsider whether a total exclusion for the Capitol Police, as proposed in this regulation, is consistent with the CAA. The commenter cited section 225(f)(1) of the CAA, which provides that, except where inconsistent with the definitions and exemptions in the CAA, the definitions and exemptions in the EPPA shall apply under the CAA. The commenter stated that section 7(a) of the EPPA, 29 U.S.C. § 2006(a) (exemption for the Federal Government and state and local governmental employers), "appears to be at least partially inconsistent with the express purpose of the Accountability Act to apply the protections of the Polygraph Protection Act to the legislative branch of the U.S. Government." In contrast, the commenter stated that section 7(e) of the EPPA, 29 U.S.C. § 2006(e), which exempts private sector employers providing security services, does not appear to be inconsistent with the CAA. Therefore, the commenter asked the Board to consider adopting for the Capitol Police the Secretary's regulations which the commenter believes are most applicable, namely, 29 U.S.C. § 801.14, which describes the exemption for private sector employers providing security services. Finally, the commenter asked the Board to explain why it is recommending that the regulation be approved by concurrent resolution rather than by joint resolution. A third commenter suggested that the regulation make clear that it applies to prospective employees, as well as to employees of the Capitol Police, in accordance with the language of EPPA, which refers to employees and prospective employees. B. Board's Consideration
of Comments. Rather, in the Board's view, the Federal Government and state and local governmental employer exemption under section 7 of the EPPA, 29 U.S.C. § 2006(a), and the Secretary's regulations thereunder, are the most appropriate model for regulations governing use of lie detector tests by the Capitol Police. As stated in the NPR, the adopted regulation is modeled after the Secretary's regulation implementing the exclusion for public sector employers, 29 C.F.R. § 801.10. Because section 204(a)(3) of the CAA gives the Board discretion to make exceptions to the general command of uniform coverage of the EPPA within the legislative branch with respect to the Capitol Police, use of regulations exempting the Federal Government or state and local government employers pursuant to section 7(a) of the EPPA (29 U.S.C. § 2006(a)) is not inconsistent with the definitions and exemptions of section 204 of the CAA. See Section 225(f). The adopted regulation, modeled after the Secretary's regulation implementing the exclusion for public sector employers (29 C.F.R. § 801.10), is an exclusion of all employees of the Capitol Police, including civilian employees. This treatment of Capitol Police employees is consistent with the EPPA's treatment of other law enforcement agencies because such agencies are entirely excluded under either the Federal Government or state and local government exemptions of section 7(a) of the EPPA (29 U.S.C. § 2006). The Board has not included in its final regulations the restrictions on polygraph examinations contained in 29 U.S.C. § 2007 (restricting the use of polygraph examinations under the limited ongoing investigations, security service and drug security exemptions), as suggested by one commenter. The adopted regulation exempts all Capitol Police employees with respect to the rights and protections of section 204. Similarly, because section 101(4) of the CAA, 2 U.S.C. §1301(4), defines the term "covered employee" to include both applicants for employment as well as current and former employees, there is no need for the regulation to separately refer to "applicants," as suggested by one commenter. The final regulation gives the Capitol Police the same authority to use lie detector tests as state and local police departments and law enforcement agencies within the Federal Government have. The Capitol Police currently uses lie detector tests as part of its internal investigations and other law enforcement-related activities, and reserves the right to use lie detector tests in other circumstances with respect to so-called "sworn" positions, i.e., employees with the power to make arrests. This use is consistent with the use of lie detector tests by other law enforcement agencies. II. Adoption of Proposed Rules as Final Regulations under Section 304(b)(3) and as Interim Regulations Having considered the public comments to the proposed rules, the Board, pursuant to section 304(b)(3) and (4) of the CAA, is adopting these final regulations and transmitting them to the House and the Senate with recommendations as to the method of approval by each body under section 304(c). However, the rapidly approaching effective date of the CAA's implementation necessitates that the Board take further action with respect to these regulations. For the reasons explained below, the Board is also today adopting and issuing these rules as interim regulations that will be effective as of January 23, 1996 or the time upon which appropriate resolutions of approval of these interim regulations are passed by the House and/or the Senate, whichever is later. These interim regulations will remain in effect until the earlier of April 15, 1996 or the dates upon which the House and Senate complete their respective consideration of the final regulations that the Board is herein adopting. The Board finds that it is necessary and appropriate to adopt such interim regulations and that there is "good cause" for making them effective as of the later of January 23, 1996, or the time upon which appropriate resolutions of approval of them are passed by the House and the Senate. In the absence of the issuance of such interim regulations, covered employees, employing offices, and the Office of Compliance staff itself would be forced to operate in regulatory uncertainty. While section 411 of the CAA provides that, "if the Board has not issued a regulation on a matter for which this Act requires a regulation to be issued, the hearing officer, Board, or court, as the case may be, shall apply, to the extent necessary and appropriate, the most relevant substantive executive agency regulation promulgated to implement the statutory provision at issue in the proceeding," covered employees, employing offices and the Office of Compliance staff might not know what regulation, if any, would be found applicable in particular circumstances absent the procedures suggested here. The resulting confusion and uncertainty on the part of covered employees and employing offices would be contrary to the purposes and objectives of the CAA, as well as to the interests of those whom it protects and regulates. Moreover, since the House and the Senate will likely act on the Board's final regulations within a short period of time, covered employees and employing offices would have to devote considerable attention and resources to learning, understanding, and complying with a whole set of default regulations that would then have no future application. These interim regulations prevent such a waste of resources. The Board's authority to issue such interim regulations derives from sections 411 and 304 of the CAA. Section 411 gives the Board authority to determine whether, in the absence of the issuance of a final regulation by the Board, it is necessary and appropriate to apply the substantive regulations of the executive branch in implementing the provisions of the CAA. Section 304(a) of the CAA in turn authorizes the Board to issue substantive regulations to implement the Act. Moreover, section 304(b) of the CAA instructs that the Board shall adopt substantive regulations "in accordance with the principles and procedures set forth in section 553 of title 5, United States Code," which have in turn traditionally been construed by courts to allow an agency to issue "interim" rules where the failure to have rules in place in a timely manner would frustrate the effective operation of a federal statute. See, e.g., Philadelphia Citizens in Action v. Schweiker, 669 F.2d 877 (3d Cir. 1982). As noted above, in the absence of the Board's adoption and issuance of these interim rules, such a frustration of the effective operation of the CAA would occur here. In so interpreting its authority, the Board recognizes that in section 304 of the CAA, Congress specified certain procedures that the Board must follow in issuing substantive regulations. In section 304(b), Congress said that, except as specified in section 304(e), the Board must follow certain notice and comment and other procedures. The interim regulations in fact have been subject to such notice and comment and such other procedures of section 304(b). In issuing these interim regulations, the Board
also recognizes that section 304(c) specifies certain procedures
that the House and the Senate are to follow in approving the Board's
regulations. The Board is of the view that the essence of section
304(c)'s requirements are satisfied by making the effectiveness
of these interim regulations conditional on the passage of appropriate
resolutions of approval by the House and/or the Senate. Moreover,
section 304(c) appears to be designed primarily for (and applicable
to) final regulations of the Board, which these interim regulations
are not. In short, section 304(c)'s procedures should not be understood
to prevent the issuance of interim regulations that are necessary
for the effective implementation of the CAA. The House has in fact already signaled its approval of such interim regulations both for itself and for the instrumentalities. On December 19, 1995, the House adopted H. Res. 311 and H. Con. Res. 123, which approve "on a provisional basis" regulations "issued by the Office of Compliance before January 23, 1996." The Board believes these resolutions are sufficient to make these interim regulations effective for the House on January 23, 1996, though the House might want to pass new resolutions of approval in response to this pronouncement of the Board. To the Board's knowledge, the Senate has not yet acted on H. Con. Res. 123, nor has it passed a counterpart to H. Res. 311 that would cover employing offices and employees of the Senate. As stated herein, it must do so if these interim regulations are to apply to the Senate and the other employing offices of the instrumentalities (and to prevent the default rules of the executive branch from applying as of January 23, 1996). III. METHOD OF APPROVAL The Board continues to recommend that the regulation be approved by concurrent resolution, given the joint responsibility of the House and Senate for the Capitol Police. The regulation as adopted by the Board is consistent with the language of the CAA and does not purport to deviate from otherwise applicable regulations of the Secretary of Labor under the "good cause" provision of section 204(c). Therefore, the regulations, if approved, would be within the regulatory authorization of section 304 of the CAA and should receive full deference from the courts. Approval by joint resolution is not necessary. With respect to the interim version of these regulations, the Board recommends that the Senate approve them by concurrent resolution. It is noted that the House has expressed its approval of the regulations insofar as they apply to other employing offices through passage of H. Con. Res. 123 on the same date; this concurrent resolution is pending before the Senate. Adopted Regulations -- As Interim Regulations and As Final Regulations Exclusion for employees of the Capitol Police. None of the limitations on the use of lie detector tests by employing offices set forth in Section 204 of the CAA apply to the Capitol Police. This exclusion from the limitations of Section 204 of the CAA applies only with respect to Capitol Police employees. Except as otherwise provided by law or these regulations, this exclusion does not extend to contractors or nongovernmental agents of the Capitol Police; nor does it extend to the Capitol Police with respect to employees of a private employer or an otherwise covered employing office with which the Capitol Police has a contractual or other business relationship. Duration of Interim Regulations These interim regulations for the House of Representatives, the Senate and the employing offices of the instrumentalities are effective on January 23, 1996 or on the dates upon which appropriate resolutions are passed, whichever is later. The interim regulations shall expire on April 15, 1996 or on the dates on which appropriate resolutions concerning the Board's final regulations are passed by the House and the Senate, whichever is earlier. Scope of Regulations These regulations are issued by the Board of Directors, Office of Compliance, pursuant to sections 204(a)(3) and 304 of the CAA, which authorize the Board to issue regulations governing the use of lie detector tests by the Capitol Police. The regulations issued by the Board herein are on all matters for which section 204(a)(3) of the CAA requires a regulation to be issued.
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