H. B. 4533


(By Delegates Keener and Compton)

[Introduced February 19, 2002; referred to the

Committee on Government Organization.]





A BILL to amend and reenact sections five-a, five-b, five-c and five-d, article five, chapter twenty-one of the code of West Virginia, one thousand nine hundred thirty-one, as amended, all relating to the licensure and regulation of psychophysiological detection of deception examiners; and prohibited activities and penalties.

Be it enacted by the Legislature of West Virginia:
That sections five-a, five-b, five-c and five-d, article five, chapter twenty-one of the code of West Virginia, one thousand nine hundred thirty-one, as amended, be amended and reenacted, all to read as follows:
ARTICLE 5. WAGE PAYMENT AND COLLECTION.
§21-5-5a. Definitions.

As used in sections five-b, and five-c and five-d of this article, unless the context clearly requires otherwise:
(1) "Class I license" means a license issued to an individual authorizing the individual to administer psychophysiological detection of deception examinations for both law-enforcement and nonlaw-enforcement purposes.
(2) "Class II license" means a license issued to an individual authorizing the individual to administer psychophysiological detection of deception examinations for law-enforcement purposes only.
(1) (3) "Employer" means any individual, person, corporation, department, board, bureau, agency, commission, division, office, company, firm, partnership, council or committee of the state government, public benefit corporation, public authority or political subdivision of the state, or other business entity, which employs or seeks to employ an individual or individuals. All provisions of sections five-b, five-c and five-d of this article pertaining to employers shall apply in equal force and effect to their agents and representatives.
(2) (4) "Employee" means an individual employed by an employer.
(3) (5) "Polygraph" means an instrument which records permanently and simultaneously a subject's cardiovascular and respiratory patterns and galvanic skin response as minimum standards: Provided, That such instrument may record other physiological changes pertinent to the detection of deception "Psychophysiological detection of deception instrument (PDD)" means an instrument used for the detection of deception which must record permanently and simultaneously a person's cardiovascular, respiratory patterns and galvanic skin (electrodermal) response by whatever means as a minimum standards: Provided, That the instrument may record, in addition to the aforementioned, other physiological changes pertinent to the detection of deception.
(4) (6) "Prospective employee" means an individual seeking or being sought for employment with an employer.
(7) "Psychophysiological detection of deception (PDD)" means an examination which records permanently and simultaneously a person's cardiovascular and respiratory patterns and galvanic skin response as minimum standards: Provided, That the instrument may record other physiological changes pertinent to the detection of deception .
§21-5-5b. Employer limitations on use of detection of deception devices or instruments; exceptions.

No employer may require or request either directly or indirectly, that any employee or prospective employee of such the employer submit to a polygraph psychophysiological detection of deception examination, lie detector or other such similar test examination utilizing mechanical or electronic measures of physiological reactions to evaluate truthfulness, and no employer may knowingly allow the results of any such examination or test administered outside this state to be utilized for the purpose of determining whether to employ a prospective employee or to continue the employment of an employee in this state: Provided, That the provisions of this section shall not apply to employees of an employer authorized to manufacture, distribute or dispense the drugs to which article five, chapter thirty applies, excluding ordinary drugs as defined in section twenty-one, article five, chapter thirty: Provided, however, That the provisions of this section shall not apply to law-enforcement agencies or to military forces of the state as defined by section one, article one, chapter fifteen of the code: Provided further, That the results of any such examination shall be used solely for the purpose of determining whether to employ or to continue to employ any person exempted hereunder and for no other purpose.
§21-5-5c. License required for psychophysiological detection of deception examiners; qualifications; promulgation of rules governing administration of polygraph tests.

(a) No person, firm or corporation shall administer a polygraph psychophysiological detection of deception (PDD) examination, lie detector or other such similar test examination utilizing mechanical or electronic measures of physiological reactions to evaluate truthfulness to an employee or prospective employee without holding a current valid license to do so as issued by the commissioner of labor. No test examination shall be administered by a licensed corporation except by an officer or employee thereof who is also licensed.
(b) A person is qualified to receive a license as an examiner if he:
(1) Is at least eighteen twenty-one years of age;
(2) Is a citizen of the United States;
(3) Has not been convicted of a misdemeanor involving moral turpitude or a felony;
(4) Has not been released or discharged with other than honorable conditions from any of the armed services of the United States or that of any other nation;
(5) Has passed an examination conducted by the commissioner of labor or under his or her supervision, to determine his or her competency to obtain a license to practice as an examiner;
(6) Has satisfactorily completed not less than six months of internship training; and
(7) Has met any other qualifications of education or training established by the commissioner of labor in his or her sole discretion which qualifications are to be at least as stringent as those recommended by the American polygraph association.
(c) The commissioner of labor may design and by procedural rule designate and thereafter administer any test he deems the commissioner considers appropriate to those persons applying for a license to administer polygraph psychophysiological detection of deception, lie detector or such similar test examination. to employees or prospective employees The test designed by the commissioner of labor shall be so designed as to ensure that the applicant is thoroughly familiar with the code of ethics of the American polygraph association and has been trained in accordance with association rules. The test must also include a rigorous examination of the applicant's knowledge of and familiarity with all aspects of operating polygraph psychophysiological detection of deception equipment and administering psychophysiological detection of deception examinations.
(d) The license to give a polygraph administer psychophysiological detection of deception, lie detector or similar test examinations to employees or prospective employees any person shall be issued for a period of one year. It may be reissued from year to year.
(e) The commissioner of labor shall charge a fee of one hundred fifty dollars for each issuance or reissuance of a license to give a polygraph psychophysiological detection of deception, lie detector or similar test examination to employees or prospective employees any person for Class I license and one hundred dollars for Class II license. Such The fee shall be deposited in the general revenue fund of the state. In addition to any other information required, an application for a license shall include the applicant's social security number.
(f) The commissioner of labor shall promulgate legislative rules pursuant to the provisions of chapter twenty-nine-a, article three, governing the administration of polygraph psychophysiological detection of deception, lie detector or such similar test examination to employees any person. Such The legislative rules shall include:
(1) The type and amount of training or schooling necessary for a person before which he or she may be licensed to give or interpret such polygraph a psychophysiological detection of deception, lie detector or similar test examination;
(2) Standards of accuracy which shall be met by machines or other devices to be used in polygraph psychophysiological detection of deception, lie detector or similar tests examination; and
(3) The conditions under which a polygraph psychophysiological detection of deception, lie detector or such similar test examination may be given.
§21-5-5d. Penalties; cause of action.

(a) It shall be a misdemeanor to administer or interpret a polygraph psychophysiological detection of deception, lie detector or similar test examination utilizing mechanical or electronic measures of physiological reactions to evaluate truthfulness to an employee or prospective employee without having received a valid and current license to do so as issued by the commissioner of labor or in violation of any rule or regulation promulgated by the commissioner under section five-c of this article. Any person convicted or violating section five-c shall be fined not more than five hundred dollars.
(b) Any employer person who violates section five-b of this article is guilty of a misdemeanor and, upon conviction thereof, shall be fined not more than five hundred dollars.
(c) Any employee or prospective employee has a right to sue an employer or prospective employer for a violation of the provisions of section five-b of this article. If successful, the employee or prospective employee shall recover threefold the damages sustained by him or her, together with reasonable attorneys' fees, filing fees and reasonable costs of the action. Reasonable costs of the action may include, but shall not be limited to, the expenses of discovery and document reproduction. Damages may include, but shall not be limited to, back pay for the period during which the employee did not work or was denied a job.


NOTE: The purpose of this bill is to change the term polygraph to psychophysiological detection of deception and to set forth different classes of licensure for psychophysiological detection of deception examiners.

Strike-throughs indicate language that would be stricken from the present law, and underscoring indicates new language that would be added.