Section 111.37. Use of honesty testing devices in employment situations.

 

(1)   Definitions. In this section:

(a) “Employer", notwithstanding s. 111.32 (6) , means any person acting directly or indirectly in the interest of an employer in relation to an employee or prospective employee. “Employer", notwithstanding s. 111.32 (6) , does not include the federal government.

(b) “Lie detector" means a polygraph, deceptograph, voice stress analyzer, psychological stress evaluator or other similar device, whether mechanical or electrical, that is used, or the results of which are used, to render a diagnostic opinion about the honesty or dishonesty of an individual.

(c) “Polygraph" means an instrument that fulfills all of the following requirements:

1. Records continuously, visually, permanently and simultaneously any changes in cardiovascular, respiratory and electrodermal patterns as minimum instrumentation standards.

2. Is used, or the results of which are used, to render a diagnostic opinion about the honesty or dishonesty of an individual.

(2)   Prohibitions on lie detector use. Except as provided in subs. (5) and (6) , no employer may do any of the following:

(a) Directly or indirectly require, request, suggest or cause an employee or prospective employee to take or submit to a lie detector test.

(b) Use, accept, refer to or inquire about the results of a lie detector test of an employee or prospective employee.

(c) Discharge, discipline, discriminate against or deny employment or promotion to, or threaten to take any such action against, any of the following:

1. An employee or prospective employee who refuses, declines or fails to take or submit to a lie detector test.

2. An employee or prospective employee on the basis of the results of a lie detector test.

(d) Discharge, discipline, discriminate against or deny employment or promotion to, or threaten to take any such action against, an employee or prospective employee for any of the following reasons:

1. The employee or prospective employee has filed a complaint or instituted or caused to be instituted a proceeding under this section.

2. The employee or prospective employee has testified or is about to testify in a proceeding under this section.

3. The employee or prospective employee, on behalf of that employee, prospective employee or another person, has exercised any right under this section.

(3)   Notice of protection. The department shall prepare and distribute a notice setting forth excerpts from, or summaries of, the pertinent provisions of this section. Each employer that administers lie detector tests, or that has lie detector tests administered, to its employees shall post and maintain that notice in conspicuous places on its premises where notices to employees and applicants for employment are customarily posted.

(4)   Department's duties and powers.

(a) The department shall do all of the following:

1. Promulgate rules that are necessary under this section.

2. Cooperate with regional, local and other agencies and cooperate with, and furnish technical assistance to, employment agencies other than this state, employers and labor organizations to aid in enforcing this section.

3. Make investigations and inspections and require the keeping of records necessary for the administration of this section.

(b) For the purpose of any hearing or investigation under this section, the department may issue subpoenas.

(5)   Exemptions.

(a) Except as provided in sub. (6) , this section does not prohibit an employer from requesting an employee to submit to a polygraph test if all of the following conditions apply:

1. The test is administered in connection with an ongoing investigation involving economic loss or injury to the employer's business, including theft, embezzlement, misappropriation and unlawful industrial espionage or sabotage.

2. The employee had access to the property that is the subject of the investigation under subd. 1.

3. The employer has a reasonable suspicion that the employee was involved in the incident or activity under investigation.

4. The employer executes a statement, provided to the examinee before the test, that sets forth with particularity the specific incident or activity being investigated and the basis for testing particular employees; that is signed by a person, other than a polygraph examiner, authorized legally to bind the employer; that is retained by the employer for at least 3 years; and that identifies the specific economic loss or injury to the business of the employer, indicates that the employee had access to the property that is the subject of the investigation and describes the basis of the employer's reasonable suspicion that the employee was involved in the incident or activity under investigation.

(b) Except as provided in sub. (6) , this section does not prohibit an employer from administering polygraph tests, or from having polygraph tests administered, on a prospective employee who, if hired, would perform the employer's primary business purpose if the employer's primary business purpose is providing security personnel, armored car personnel or personnel engaged in the design, installation and maintenance of security alarm systems and if the employer protects any of the following:

1. Facilities, materials or operations that have a significant impact on the public health, safety or welfare of this state or the national security of the United States, including facilities engaged in the production, transmission or distribution of electric or nuclear power; public water supply facilities; shipments or storage of radioactive or other toxic waste materials; and public transportation.

2. Currency, negotiable securities, precious commodities or instruments and proprietary information.

(bm) Except as provided in sub. (6) , this section does not prohibit a Wisconsin law enforcement agency from administering a polygraph test, or from having a polygraph test administered, on a prospective employee.

(c) Except as provided in sub. (6) , this section does not prohibit an employer that is authorized to manufacture, distribute or dispense a controlled substance included in schedule I, II, III, IV or V under ch. 961 from administering a polygraph test, or from having a polygraph test administered, if the test is administered to a prospective employee who would have direct access to the manufacture, storage, distribution or sale of the controlled substance or to a current employee if the test is administered in connection with an ongoing investigation of criminal or other misconduct that involves, or potentially involves, loss or injury to the manufacture, distribution or dispensing of the controlled substance by that employer and the employee had access to the person or property that is the subject of the investigation.

(6)   Restrictions on use of exemptions.

(a) The exemption under sub. (5) (a) does not apply if an employee is discharged, disciplined, denied employment or promotion or otherwise discriminated against on the basis of an analysis of a polygraph test chart or a refusal to take a polygraph test without additional supporting evidence. The evidence required by sub. (5) (a) may serve as additional supporting evidence.

(b) The exemptions under sub. (5) (b) to (c) do not apply if an analysis of a polygraph test chart is used, or a refusal to take a polygraph test is used, as the sole basis upon which an adverse employment action described in par. (a) is taken against an employee or prospective employee.

(c) The exemptions under sub. (5) (a) to (c) do not apply unless all of the following requirements are fulfilled:

1. Throughout all phases of the test the examinee is permitted to end the test at any time; the examinee is not asked questions in a manner that degrades, or needlessly intrudes on, the examinee; the examinee is not asked any question about religious beliefs or affiliations, political beliefs or affiliations, sexual behavior, beliefs or opinions on racial matters, or about beliefs, affiliations, opinions, or lawful activities regarding unions or labor organizations; and the examiner does not conduct the test if there is sufficient written evidence provided by a physician that the examinee is suffering from a medical or psychological condition or undergoing treatment that might cause abnormal responses during the testing.

2. Before the test is administered the prospective examinee is provided with reasonable oral and written notice of the date, time and location of the test, and of the examinee's right to obtain and consult with legal counsel or an employee representative before each phase of the test; is informed orally and in writing of the nature and characteristics of the tests and of the instruments involved; is informed orally and in writing whether or not the testing area contains a 2-way mirror, a camera or any other device through which the test can be observed; is informed orally and in writing whether or not any device other than the polygraph, including any device for recording or monitoring the test, will be used; is informed orally and in writing that the employer or the examinee may, after so informing the examinee, make a recording of the test; is read and signs a written notice informing the examinee that the examinee cannot be required to take the test as a condition of employment, that any statement made during the test may constitute additional supporting evidence for the purposes of an adverse employment action under par. (a) , of the limitations on the use of a polygraph test under this subsection, of the legal rights and remedies available to the examinee under this section and ss. 905.065 and 942.06 , of the legal rights and remedies available to the examinee if the polygraph test is not conducted in accordance with this section and of the legal rights and remedies of the employer under this section; is provided an opportunity to review all questions to be asked during the test; and is informed of the right to end the test at any time.

3. The examiner does not ask the examinee any question during the test that was not presented in writing for review to the examinee before the test.

4. Before any adverse employment action, the employer interviews the examinee on the basis of the results of the test; provides the examinee written copies of any opinion or conclusion rendered as a result of the test, the questions asked during the test and the corresponding charted responses; and offers the examinee the opportunity to explain any questionable responses or to retake the examination or both. If the subsequent responses or the reexamination clarify any questionable response, the results of the initial tests shall not be reported further and shall be removed, corrected or clarified in the employee's personnel records under s. 103.13 (4) .

5. The examiner does not conduct and complete more than 5 polygraph tests on any day and does not conduct any polygraph test that lasts for less than 90 minutes.

6. The test is administered at a reasonable time and location.

(d) The exemptions under sub. (5) (a) to (c) do not apply unless the individual who conducts the polygraph test satisfies all of the following requirements:

1. Maintains at least a $50,000 bond or an equivalent amount of professional liability coverage.

2. Renders no opinion or conclusion about the test unless it is in writing and based solely on an analysis of polygraph test charts, does not contain information other than admissions, information, case facts and interpretation of the charts relevant to the purpose and stated objectives of the test, and does not include any recommendation concerning the employment of the examinee.

3. Maintains all opinions, reports, charts, written questions, lists and other records relating to the test for at least 3 years after administration of the test.

(7)   Disclosure of information. No person other than the examinee may disclose information obtained during a polygraph test, except that a polygraph examiner may disclose information acquired from a polygraph test to the examinee or any other person specifically designated in writing by the examinee.

(8)   Enforcement provisions.

(a) In addition to the rights, remedies and procedures under ss. 111.375 and 111.39 , any employer who violates this section may be required to forfeit not more than $10,000.

(b) The rights, remedies and procedures provided by this section may not be waived by contract or otherwise, unless that waiver is part of a written settlement agreed to and signed by the parties to an action or complaint under this section.

1979 c. 319 ; 1981 c. 334 ss. 12 , 24 ; Stats. 1981 s. 111.37; 1991 a. 289 ; 1995 a. 314 , 448 ; 1997 a. 35 .