WEST virginia legislature
2022 regular session
ENGROSSED
Committee Substitute
for
House Bill 4262
By Delegates Steele and Foster
[Originating in the Committee on Government Organization; February 9, 2022]
A BILL to repeal §21-5-5c of the Code of West Virginia, 1931, as amended, and to amend and reenact §21-5-5d of said code; all relating to licensure for polygraph examiners, removing state licensure requirements for polygraph examiners; and updating criminal penalties associated with removing state licensure.
Be it enacted by the Legislature of West Virginia:
ARTICLE 5. WAGE PAYMENT AND COLLECTION.
§21-5-5c. License required for psychophysiological
detection of deception examiners; qualifications; promulgation of rules
governing administration of psychophysiological detection of deception examinations
Requirements for persons performing psychophysiological detection of
deception examinations.
Any person who is a member in good standing of the American Polygraph Association or a member of the American Association of Police Polygraphists may be hired or contracted to perform psychophysiological detection of deception examinations in this state. The person must be able to show that he or she is in good standing and has completed or is on track to complete all continuing education units for the reporting period.
(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. 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 in good standing of the American Polygraph
Association or the American Association of Police Polygraphists. Any person
convicted of violating section five-c 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.