ENROLLED
COMMITTEE SUBSTITUTE
FOR
H. B. 2529
(By Delegates Beane, Kuhn, Brown, Ellem and Leggett)
[Passed March 7, 2003; in effect ninety days from passage.]
AN ACT 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) "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) "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 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.
§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 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 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 designate and administer any test the commissioner 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 a fee to be
established by legislative rule. The 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 propose rules for
legislative approval in accordance with the provisions of article
three, chapter twenty-nine 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 sections five-
a, five-b, five-c and five-d of this article 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 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
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. Any person convicted or violating section five-c shall be
fined not more than five hundred dollars.
(b) Any 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.
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