H. B. 2529
(By Delegates Beane, Kuhn, Brown,
Ellem and Leggett)
[Introduced January 23, 2003
; referred to the
Committee on Government Organization then Finance.]
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; creating
categories of licensure; authorizing legislative rules;
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, five-c and five-d of this article, unless the context clearly requires otherwise:
(1) "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) "Employee" means an individual employed by an employer.
(3) "Polygraph" "Psychophysiological detection of deception
instrument" means an instrument used for the detection of deception
which records permanently and simultaneously a subject's person's
cardiovascular and respiratory patterns and galvanic skin response:
as minimum standards Provided, That such the instrument may record
other physiological changes pertinent to the detection of
deception.
(4) "Prospective employee" means an individual seeking or
being sought for employment with an employer.
(5) "Psychophysiological detection of deception" means an
examination which records permanently and simultaneously a person's
cardiovascular and respiratory patterns and galvanic skin response.
§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 or prospective employees who would have direct
access to the manufacture, storage, distribution or sale of any
controlled substance listed in schedule I, II, III or IV of section
eight hundred twelve of title twenty-one of the United States code:
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
psychophysiological detection of deception
examinations.
(a) No person, firm or corporation shall administer 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 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 or she:
(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. The licenses to be issued are:
(1) "Class I license" which authorizes an individual to
administer psychophysiological detection of deception examinations
for all purposes which are permissible under the provisions of this
article and other applicable laws and rules.
(2) "Class II license" which authorizes an individual who is
a full time employee of a law enforcement agency to administer
psychophysiological detection of deception examinations to its
employees or prospective employees only.
(e) The commissioner of labor shall charge a fee of one
hundred dollars for each issuance or reissuance of a license to
give a polygraph,
lie detector or similar test
to employees or
prospective employees to be established by legislative rule. Such
The fee fees 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, propose rules for legislative approval in accordance with the provisions of article three, chapter twenty-nine of this code
governing the administration of polygraph psychophysiological
detection of deception,
lie detector or such similar test
examination to employees any person: Provided, That all applicable
rules in effect on the effective date of sections five-a, five-b,
five-c and five-d of this article will remain in effect until
amended, withdrawn, revoked, repealed or replaced. 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 administer
or interpret such polygraph a
psychophysiological detection of
deception,
lie detector or similar test examination;
(2) Testing requirements including the designation of the test
to be administered to persons applying for licensure;
(2) (3) 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) (4) The conditions under which a polygraph
psychophysiological detection of deception,
lie detector or such
similar test examination
may be given administered;
(5) Fees for licenses, renewals of licenses and other services
provided by the commissioner;
(6) Any other qualifications or requirements, including continuing education, established by the commissioner for the
issuance or renewal of licenses; and
(7) Any other purpose to carry out the requirements of sections
five-a, five-b, five-c and five-d of this article.
§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.
This bill is recommended for passage during the 2003 regular
session by the Joint Standing Committee on Government Organization.