Page:United States Statutes at Large Volume 102 Part 1.djvu/687

 PUBLIC LAW 100-347—JUNE 27, 1988

102 STAT. 649

(A)(i) any individual employed by, assigned to, or detailed to, the National Security Agency, the Defense Intelligence Agency, or the Central Intelligence Agency, (ii) any expert or consultant under contract to any such agency, (iii) any employee of a contractor to any such agency, (iv) any individual applying for a position in any such agency, or (v) any individual assigned to a space where sensitive cryptologic information is produced, processed, or stored for any such agency; or (B) any expert, or consultant (or employee of such expert or consultant) under contract with any Federal Government department, agency, or program whose duties involve access to information that has been classified at the level of top secret or designated as being within a special access program under section 4.2(a) of Executive Order 12356 (or a successor Executive order). (c) FBI CONTRACTORS EXEMPTION.—Nothing in this Act shall be construed to prohibit the administration, by the Federal Government, in the performance of any counterintelligence function, of any lie detector test to an employee of a contractor of the Federal Bureau of Investigation of the Department of Justice who is engaged in the performance of any work under the contract with such Bureau.

Contracts.

Classified information. Contracts. Classified information.

(d) LIMITED EXEMPTION FOR ONGOING INVESTIGATIONS.—Subject to

sections 8 and 10, this Act shall not prohibit an employer from requesting an employee to submit to a polygraph test if— (1) the test is administered in connection with an ongoing Fraud. investigation involving economic loss or injury to the em- Espionage. ployer's business, such as theft, embezzlement, misappropriation, or an act of unlawful industrial espionage or sabotage; (2) the employee had access to the property that is the subject of the investigation; (3) the employer has a resisonable suspicion that the employee was involved in the incident or activity under investigation; and (4) the employer executes a statement, provided to the examinee before the test, that— (A) sets forth with particularity the specific incident or activity being investigated and the basis for testing particular employees, (B) is signed by a person (other than a polygraph examiner) authorized to legally bind the employer, (C) is retained by the employer for at least 3 years, and (D) contains at a minimum— (i) an identification of the specific economic loss or injury to the business of the employer, (ii) a statement indicating that the employee had access to the property that is the subject of the investigation, and (iii) a statement describing the basis of the employer's reasonable suspicion that the employee was involved in the incident or activity under investigation. (e) EXEMPTION FOR SECURITY SERVICES.—

(1) IN GENERAL.—Subject to paragraph (2) and sections 8 and 10, this Act shall not prohibit the use of polygraph tests on prospective employees by any private employer whose primary

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