The CHAIRMAN. Congressman Williams. Mr. WILLIAMS. Thank you very much, Mr. Chairman. Your legislation, jointly introduced with Senator Kennedy, has, as did its companion bill in the House, one primary goal, and that is to limit the epidemic use and the epidemic growth of lie detector testing in the American workplace. The American Polygraph Association estimates that last year more than 2 million polygraph tests were given. The number of tests has tripled in just these past 10 years. In America, we are witnessing an explosion in the use of this lie detector gadget. Most Americans believe that the bulk of these tests are being given by the FBI or the CIA or NSA, or perhaps their State or local police departments. But the fact is that 98 percent of these 2 million tests are given by private business. Approximately three-quarters of these tests are given for preemployment testing and the rest are given to investigate current workers. On March 12, as you know, the House passed my bill by a vote of 236 to 173. The success in the House was frankly due to bipartisan support, and that was led by Representative McKinney on my left, Jack Kemp, and Jim Courter. Your bill fully accepts, as did mine, the previous decision of this Congress to allow careful, limited and specific use of polygraphs by the Federal Government in matters pertaining to our national security and public health. In attempting to achieve symmetry with the exemptions in the public sector, the House bill, as amended, provides cautious exemptions for those private businesses whose enterprise takes them into matters affecting our national security or public health. For example, we accepted amendments to provide exemptions regarding dangerous drugs, security guards, and the protection of electric and nuclear powerplants. I invite this committee's careful consideration of all those amendments. I urge you to review each of them with an eye toward protecting the national security. I particularly want to draw your attention to two amendments, one pertaining to the care of children and the elderly, and the other concerning the exemption of all electric and generation transmission facilities. In my judgment, those two amendments are questionable, and I urge you to review them carefully. As you know, the House-passed bill does not place a total ban on the use of lie detectors. But we believe it does halt the epidemic. The bill protects workers who are wrongfully denied employment and whose careers are being devastated based on the results of these questionable tests. In fact, tens of thousands of workers are wrongfully denied employment every year, either because they refused to take the tests or because of the inherent inaccuracy of the machines or the gadgets' operators. Through the years, States have made sporadic efforts to control the use of this gadget. Now, 31 States and the District of Columbia have passed legislation affecting their use in the private work force. However, these laws have simply not proven effective. They have, in fact, fueled the epidemic. Often, employers undermine State law by pressuring employees and jobseekers into "volunteering" to take a test, even when the State law prohibits requiring or requesting an examination. In States that completely ban the use of lie detectors, employers may avoid the law by hiring in a neighboring State which permits examination and then transferring the employee into the State where such testing is prohibited. It is clear now that State regulation has been perceived as the seal of approval on the gadget, and has thus resulted in the explosive rise to 2 million tests in the past 10 years. Our criminal justice system presumes that an individual is innocent until proven guilty. The lie detector abuses that principle by requiring America's workers to prove their innocence. The courts in this country refuse to admit polygraph results as evidence in trials. It is sadly ironic, and it is wrong, that criminals are protected from this gadget, but America's workers are not. I look forward, Senators, to working with you on this bill, hopefully in conference committee early this summer, and I thank you very much for giving us the opportunity to come before you and testify this morning. The CHAIRMAN. Thank you, Congressman Williams. We appreciate your testimony. Congressman McKinney, we are happy to have you here as well. Mr. MCKINNEY. It is very nice to be here, Mr. Chairman, and I want to thank you for the chance to testify about this. I will, with your permission, insert my statement in the record and just say a few words. The CHAIRMAN. Without objection. Mr. MCKINNEY. I have been told over and over and over again, unfortunately even by some of the distinguished members of this committee, that there is no Federal interest in this machine. There is a Federal interest in civil rights, for American civil rights related to private employment are being destroyed all over the United States. When Ed Koch left the House of Representatives to become mayor of the city of New York, he handed me an antipolygraph bill. That was a long time ago. I asked him the other day if he changed his stance on opposing the polygraph because of his recently departed friend from Queens, and he said no, because it is inaccurate. I have served on a congressional committee, the Assassinations Committee that looked into the terrible murder of Martin Luther King and looked into the assassination of John F. Kennedy. Three polygraph tests were given to James Earl Ray. They all came out with different results. So how can we give any credence to this machine? What would ever happen if we wandered through these halls and gave polygraph tests of felicity, love and hard work to all of our staff? The fact of the matter is the machine is not accurate; it can be beaten constantly; it makes mistakes. I suggest to all of you, because I know you are as interested as I am, that it is one more mechanical incursion into the civil rights of free Americans. It predisposes one's guilt. In this country, we are innocent until we are proven guilty. I would hope that the Senate would not get railroaded the way the House did. In its original version, my bill severely dealt with polygraph misuse, and I would hope that you remember that every exception you make just gives this mechanical monstrosity more credence. Thank you very much, Mr. Chairman. [The prepared statement of Mr. McKinney and responses to questions submitted by Senator Hatch follow:] PREPARED STATEMENT OF CONGRESSMAN MCKINNEY Mr. MCKINNEY. I want to thank the distinguished Chairman for the opportunity to appear before the Committee on Labor and Human Resources to testify on behalf of polygraph legislation. As you know, I have long advocated the prohibition of polygraph testing in private industry, and am pleased to the ultimate degree that this Committee is seriously considering the matter. Mr. Chairman, I am not going to relate the details of the House passage of polygraph legislation; I am sure that you and the Committee are aware of them. I am not going to spend time on the defects of mechanically detecting whether someone is truthful or deceitful; I am sure that the unreliability and invalid conclusions of polygraph tests will be discussed in length during the course of this hearing. I am not even going to mention how thousands and thousands of polygraph tests are administered every year, time and time again labeling innocent people as liars or social misfits. I am sure you will hear later about real life stories of the many lie detector victims being forced to leave jobs unnecessarily, or wrongly being denied employment, or being discriminated against because of a physicial condition or racial background. Instead, Mr. Chairman, I want to take this opportunity to express my personal outrage over the ridiculous and insidious practice of hooking people up to a machine, interrogating them with questions that have nothing to do with job performance, all done on the premise that one is guilty until proven innocent. I am further outraged by Congress' previous disregard of the matter, allowing this practice to go on. This is my eighth term as a Representative and I have seen many issues come and go, and some that even go and come back. But polygraph testing in the workplace is one of those issues that Congress has never examined with specific remedial legislation before it. And yet I would be hard pressed to come up with such a seemingly harmless and ill-publicized practice as polygraph testing that adversely affects so many citizens. Citizens' Constitutional rights are being infringed upon; fair employment practices are being ignored; and not only does the practice of administering polygraph tests continue, it is increasing. It is time that the legislative body of this country take a close look at what is happening to a countless number of citizens. I implore the members of this Committee to listen carefully to what is discussed today. It is imperative that we put a halt to the indiscriminate and discriminating use of polygraph testing. Let me emphasize that controlling or regulating the lie detector industry is not an acceptable compromise between those who favor polygraph use and those opposed. Regulating the industry only serves to legitimize the practice of the polygraph and increases occasions of harrassment and injustice as demonstrated in various states that have established polygraph standards. The polygraph machine is a barbaric and unacceptale tool-let's acknowledge that and act accordingly. In all likelihood, Mr. Chairman, you will hear arguments that point out that the House legislation does not prohibit polygraph use for government employees. The misleading conclusion is that if it's good for the government, it's good for private industry. Let me make it clear that the polygraph is not good for the government. The reasons why there is no government prohibition in the House bill are both practical and political. There are those who believe that the use of polygraph has to be maintained for government agencies, especially those involved in national security matters. Their concerns were accommodated. As you are aware, various amendments were attached to the House-pased bill allowing further exemptions; also accommodations. I would urge the members of this Committee and all members of this chamber to refrain as much as possible from providing unnecessary exemptions in the Senate version. Mr. Chairman, my outrage over this issue has somewhat abated since the House action on this matter. But polygraph abuse continues, and more and more people are being harmed. I implore you to do all you can to expedite Senate polygraph legislation so that we can soon end polygraph testing in private industry. I welcome the opportunity to respond to the questions posed by Senator Quayle 2) Such regulation should be left to the states unless states are not properly 3) The federal government should prohibit polygraph testing because thousands 5) My first preference would be to prohibit polygraph use in any forum. 6) I believe that no industry or business should receive an exemption. As I 7) Again, if this were a perfect world, polygraph testing would not be allowed 8) Day care centers and nursing homes should not be permitted to use polygraph For 9) Each of the categories mentioned are areas where violations of employee rights or civil rights can occur. Again, when state regulations fail to protect civil rights, federal regulation must and has been legislated. example, there is pending legislation concerning working with hazardous substances, the High Risk Occupational Notification and Prevention Act. With regard to workers compensation, the federal government does regulate some of these programs. There are federal laws regarding whistle blowing if a worker is not being paid overtime or minimum wage. With regard to wage garnishment or assignment, the federal government garnishes one's IRS return if child support payments are delinquent. There are times when it is necessary for the federal government to step in to protect the rights of our citizens. Prohibiting the polygraph in the workplace is one of those necessary times. Thank you for the opportunity to elaborate on my position regarding polygraph legislation. Sincere Stewart B. McKinney, M.C. |