WEST VIRGINIA LEGISLATURE
2022 REGULAR SESSION
Introduced
House Bill 4262
By Delegates Steele and Foster
[Introduced January 19, 2022; Referred to the Committee on Government Organization]
A BILL to amend and reenact §21-5-5a, §21-5-5b, §21-5-5c, and §21-5-5d of the Code of West Virginia, 1931, as amended, all relating to licensure for polygraph examiners, establishing definitions for national associations of polygraph examiners, clearly defining employer limitations for use of detection of deception equipment; removing state licensure requirements for polygraph examiners and requiring other conditions be met; and updating code citations.
Be it enacted by the Legislature of West Virginia:
ARTICLE 5. WAGE PAYMENT AND COLLECTION.
§21-5-5a. Definitions.
As used in §21-5-5b,
§21-5-5c, and §21-5-5d of this article code, unless the context
clearly requires otherwise:
(1) “American Association of Policy Polygraphists (AAPP)” means an organization dedicated to bringing together law enforcement professionals from local, state, tribal, and federal branches of law enforcement to advance the latest training, technology, and ethical standards in the field of deception detection.
(2) “American Polygraph Association (APA)” means a professional organization that exists to provide training, model best practices, and offer professional resources for the continued growth of ethical and evidence-based detection of deception through the use of polygraph.
(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) “Psychophysiological detection of
deception instrument” means an instrument used for the detection of deception
which records permanently and simultaneously a person’s cardiovascular and
respiratory patterns and galvanic skin response: Provided, That the
instrument may record 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.
(5) (7) “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.
(a) No employer may require or request either directly or
indirectly, that any employee or prospective employee of the employer submit to
a psychophysiological detection of deception examination, lie detector or other
similar examination utilizing mechanical or electronic measures of
physiological reactions to evaluate truthfulness, and no employer may knowingly
allow the results of any examination 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 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,
IV or V 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 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 unless one of the following
conditions applies:
(1) The employee or prospective employee would have direct access to the manufacture, storage, distribution, or sale of any controlled substance listed in schedule I, II, III, IV or V of §60A-2-1 et seq. of this code;
(2) The employee or prospective employee is employed or seeking to be employed with law-enforcement agencies or to military forces of the state as defined by §15-1-1 et seq. of this code; or
(3) Otherwise complies with the Employee Polygraph Protection Act 29 U.S.C. § 2001 et seq.
(b) The results of any 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. Requirements
for psychophysiological detection of deception examiners. 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
psychophysiological detection of deception examination, lie detector, or other
similar examination utilizing mechanical or electronic measures of
physiological reactions to evaluate truthfulness without holding a current
valid license to do so as issued by the Commissioner of Labor being a
member of the American Polygraph Associate or the American Association of
Police Polygraphists and otherwise meeting the requirements in the Employee
Polygraph Protection Act, 29 U.S.C. § 2007. No 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 21 years
of age;
(2) Is a citizen of the
United States;
(3) Has not been
convicted of a felony: Provided, That the commissioner shall apply §21-1-6 of this
code to determine if the prior criminal conviction bears a rational nexus to
the license being sought;
(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 designate and administer any test he or she considers appropriate to
those persons applying for a license to administer psychophysiological
detection of deception, lie detector, or similar examination. The test shall be
designed 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
psychophysiological detection of deception equipment and administering
psychophysiological detection of deception examinations.
(d) The license to
administer psychophysiological detection of deception, lie detector, or similar
examinations to 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 an annual fee to be established by legislative rule. All
fees paid pursuant to this section shall be paid to the Commissioner of Labor
and deposited in an appropriated special revenue account hereby created in the
State Treasury to be known as the Psychophysiological Examiners Fund and
expended for the implementation and enforcement of this section. Through June
30, 2019, amounts collected which are found from time to time to exceed funds
needed for the purposes set forth in this section may be utilized by the
commissioner as needed to meet the division’s funding obligations: Provided,
That beginning July 1, 2019, amounts collected may not be utilized by the commissioner
as needed to meet the division’s funding obligations. 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 propose rules for legislative approval in accordance with §29A-3-1 et
seq. of this code governing the administration of psychophysiological
detection of deception, lie detector, or similar examination to any person: Provided,
That all applicable rules in effect on the effective date of §21-5-5a,
§21-5-5b, §21-5-5c, and §21-5-5d of this code will remain in effect until
amended, withdrawn, revoked, repealed, or replaced. 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 administer or interpret a psychophysiological detection of
deception, lie detector, or similar examination;
(2) Testing
requirements, including the designation of the test to be administered to
persons applying for licensure;
(3) Standards of
accuracy which shall be met by machines or other devices to be used in
psychophysiological detection of deception, lie detector, or similar
examination;
(4) The conditions under
which a psychophysiological detection of deception, lie detector, or similar
examination may be 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 §21-5-5a, §21-5-5b, §21-5-5c, and §21-5-5d of
this code
§21-5-5d. Penalties; cause of action.
(a) It shall be a
misdemeanor to administer or interpret a psychophysiological detection of
deception, lie detector or similar examination utilizing mechanical or
electronic measures of physiological reactions to evaluate truthfulness 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 being a member of
the American Polygraph Associate or the American Association of Police
Polygraphists and otherwise meeting the requirements in the Employee Polygraph
Protection Act, 29 U.S.C. § 2007. Any person convicted of violating §21-5-5c
of this code shall be fined not more than $500.
(b) Any person who violates
§21-5-5b of this article code is guilty of a misdemeanor and,
upon conviction thereof, shall be fined not more than $500.
(c) Any employee or
prospective employee has a right to sue an employer or prospective employer for
a violation of the provisions of §21-5-5b of this article code.
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 eliminate state licensing of polygraph examiners.
Strike-throughs indicate language that would be stricken from a heading or the present law and underscoring indicates new language that would be added.