STATE OF MICHIGAN

FRANK J. KELLEY, ATTORNEY GENERAL

Opinion No. 5717

June 5, 1980

FORENSIC POLYGRAPH EXAMINERS:

Polygraph examination of an applicant for employment

Use of services of unlicensed polygraph examiner in another state

1972 PA 295, Sec. 26(1), which bars an employer or agent from requiring an employee to take a polygraph examination, lie detector test or similar test does not apply to an applicant for employment.

An employee is not bound by a waiver of the protection of state law preventing an employer or agent from requiring such examination or test if the waiver was obtained prior to the time of employment of the employee.

The use of the services of an unlicensed polygraph examiner to be performed in another state does not subject the employer to prosecution under 1972 PA 295. An employer employing the services of an unlicensed polygraph examiner in Michigan through a third party as an agent for the employer may subject the agent to prosecution for violation of 1972 PA 295.

Dr. Frank Horvath

Chairman

Board of Forensic Polygraph Examiners

Department of State Police

914 South Harrison Road

East Lansing, Michigan 48823

Your predecessor has requested my opinion upon the following questions:

While your questions will be answered seriatim, each of them relates to 1972 PA 295, Sec. 26, as last amended by 1975 PA 278; MCLA 338.1726; MSA 18.186(26). As originally enacted, 1972 PA 295, Sec. 26, supra, provided:

Thus, in its original form, this statute made no reference to an applicant for employment as distinguished from an employee.

The Legislature amended 1972 PA 295, Sec. 26, supra, by means of 1975 PA 278, and as so amended, Sec. 26 reads as follows:

It should be noted that the Legislature, by means of 1975 PA 278, not only added subsections (3), (5), (6) and (7) to section 26, but it also amended subsection (1) thereof. While the Legislature used the phrase 'an applicant for employment' only in subsection (3), it did not add this phrase to subsection (1) when it amended the subsection to add the first two sentences thereto. Nor did it employ that phrase in subsection (5) when it added that subsection to section 26. These omissions by the Legislature must be considered deliberate. There is no basis to assume arbitrarily that the phrase 'applicant for employment' was unintentionally omitted from 1972 PA 295, Sec. 26(1), supra. Reichert v Peoples State Bank for Savings, 265 Mich 668; 252 NW 484 (1934).

It is, therefore, my opinion in answer to your first question that 1972 PA 295, Sec. 26(1), supra, has no application to persons applying for employment. ⁽¹⁾

In your second question, you ask whether 1972 PA 295, Sec. 26(5), supra, prohibits an employer or agent from requiring, as a condition of employment, that an applicant for employment sign a waiver of his rights if he is not yet employed.

As has been demonstrated herein, the Legislature added subsections (3) and (5) to 1972 PA 295, Sec. 26, supra, by means of amendatory 1975 PA 278. While the Legislature used the terms 'applicant for employment' and 'employee' in subsection (5). Employing the same reasoning used to respond to your first question, it must follow that the Legislature did not intend subsection (5) to apply to an applicant for employment.

Assuming, arguendo, that an employer requires an applicant for employment to sign such a waiver prior to his employment as a condition of his employment, and assuming that the employer thereafter employs the applicant, the employee is, nevertheless, afforded the protection of 1972 PA 295, Sec. 26(1), supra, in that the employer or agent shall not require a polygraph examination, lie detector test or similar test of such newly-hired employee and shall not discharge such newly-hired employee solely because the employee refuses or declines to take such a test. Thus, the employee is fully protected because the test need not be taken and the employer may not discharge the employee for refusal to take the test. However, the employer or agent has not violated 1972 PA 295, Sec. 26(5) by requiring an applicant for employment to sign a waiver of his rights before he becomes an employee.

Turning to your third question, it should first be noted that 1972 PA 295, Sec. 26(3), supra, relates only to the use or employment of the services of an unlicensed polygraph examiner by an employer or agent when dealing with an applicant for employment or an employee. In such instance, your question is premised upon the fact that the services of the unlicensed polygraph examiner are performed in a state other than the State of Michigan.

It is elementary that the provisions of 1972 PA 295, Sec. 26(3) supra, apply only within the territorial boundaries of this state. People v Tyler, 7 Mich 161 (1859); Tyler v People, 8 Mich 319 (1860). The statute makes it unlawful for an employer or agent, whether an attorney or other person, to use or employ the services of an unlicensed polygraph examiner to examine an applicant for employment or an employee in this state. A violation of this section is punishable as a misdemeanor subject to fine of not more than $1,000.00. Because this is a criminal offense, it is necessary for the people to prove the elements of the offense beyond a reasonable doubt. The employment or use of the services of an unlicensed polygraph examiner in another state would not subject the employer to prosecution in Michigan under this statute.

As to telephone conversations originating in the State of Michigan and relating to the service of an unlicensed polygraph examiner in another state, or the use of a recording for review by an unlicensed polygraph examiner outside of the state, neither of these events involving the services of an unlicensed polygraph examiner outside the state would constitute a violation of the statute since the statute interdicts the use or employment of the services of an unlicensed polygraph examiner and the unlicensed polygraph examiner would be performing services in another state. Thus, there is no violation of the statute.

In response to your last question, it is my opinion that if the employer or agent obtains the services of an unlicensed polygraph examiner through a third party, either through another employer or an attorney, a violation may take place if it is established that the person securing the services of an unlicensed polygraph examiner does so as an agent for the employer. The question is ultimately one of fact for determination by a judge or jury. Further, if the employer or agent and the second employer or attorney unlawfully agreed to violate 1972 PA 295, Sec. 26, supra, it is possible to charge them with a conspiracy to infringe 1972 PA 295, Sec. 26, supra, in violation of 1931 PA 328, Sec. 157a, as last amended by 1966 PA 296; MCLA 750.157a; MSA 28.354(1).

Frank J. Kelley