SPSE has asked its attorney to study the polygraph regulations and provide us some guidance on what protections there are for employees who are called for polygraph testing. The polygraph exams are governed by federal regulations (Title 10, Code of Federal Regulations (CFR), §§ 709-711). The CFR says that DOE may not administer a polygraph exam unless DOE has notified the individual in writing at least ten days in advance, and has obtained the employee's written consent. There is an exception "when good cause is shown," but this is the exception, not the rule. The purpose of the ten-day rule is to allow the employee time to consult an attorney, or arrange for "other representation," if so desired. Currently, an employee is asked to sign three consent forms: (1) a "regular" consent form specifying that you are agreeing to take the test, (2) a medical release form that specifies that there is no medical reason you cannot take the test, and (3) a form that specifies that you are waiving the ten-day rule.
Our attorney's view is that the employee can NOT be required to sign the ten-day rule waiver. In fact, we should make it clear to the examiner that we are NOT waiving any of the rights that are spelled out in the CFR. This we can do with another consent form that is available from the SPSE website. This form lists the rights that employees asked to take polygraph examinations have and indicates rights that are NOT being waived, including the "right to obtain and consult with legal counsel or to secure another representative prior to the examination."
For SPSE members the "other representative" can be an SPSE representative. SPSE members are strongly urged to talk to an SPSE representative prior to taking the polygraph exam. Although the representative cannot be in the examining room during the test, the right to representation, according to our attorney, should allow the individual the right to adjourn the examination to consult with his/her representative without actually terminating the examination.
The detailed guidance provided by our attorney is also accessible on our website at (see below).
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If You are Asked to Take a Polygraph Examination: A Guide for Employees at LLNL, by Andrew Thomas Sinclair (PDF) |
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Instructions for using the form |
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SPSE Polygraph Testing Consent Form |
For more information about polygraphs, and SPSE's position on them...
Go back to the SPSE Home Page
http://www.spse.org/