MA Job Applications Should Provide Notice That You Will Not Use a Lie Detector Test as a Condition of Employment

Read the statute here.

The statute also requires that:

All applications for employment within the commonwealth shall contain the following notice which shall be in clearly legible print:

“It is unlawful in Massachusetts to require or administer a lie detector test as a condition of employment or continued employment. An employer who violates this law shall be subject to criminal penalties and civil liability.”

Not only does the statute specifically mandate fines (and even potential imprisonment for multiple violations), but there also is a private right of action:

Any person aggrieved by a violation of [the above] may institute … for himself and for other similarly situated, a civil action for injunctive relief and any damages thereby incurred …. The total awarded damages shall equal or exceed a minimum of five hundred dollars for each such violation. A person so aggrieved and who prevails in such action shall be entitled to an award of the costs of the litigation and reasonable attorney fees.

Last year, in Baker v. CVS, CVS found itself being sued by a former job applicant, who claimed that (1) the digital technology CVS’s consultant used to analyze video job interviews amounted to a lie detector test, and (2) CVS failed to provide the requisite notice in its job application that no lie detector test would be administered. While CVS moved to dismiss, Baker had a good basis on which to oppose because CVS’s consultant claimed that it could provide insight as to whether an applicant “[h]as an innate sense of integrity and honor,” help with “lie detection,” “screen out embellishers,” and organize applicant competencies including “reliability, honesty, [and] integrity.” As a result, CVS’s motion to dismiss was denied, both respect to the alleged substantive violation of the Statute and the claim for failing to provide the statutorily required notice.

Now, the same lawyers who represented Baker have brought a spate of class action lawsuits under the Lie Detector Statute against companies, including Procter & Gamble, simply for failing to provide the statutory notice and without any allegation that the companies were administering lie detector tests in the interview process. For sure, it appears that these companies have a solid defense because the private right of action only extends to someone “aggrieved by a violation” of the statute, and it is hard to imagine how someone could be aggrieved by not receiving notice that the employer can’t use a lie detector test when that employer is not using a lie detector test. Nevertheless, this issue has not been resolved, and it is unclear how the plaintiffs’ attorneys will attempt to counter it. But, no doubt, they will come up with something.

Further, even if a ruling issues that no private right of action exists under such circumstances, failing to provide the mandated notice still exposes companies to potential statutory fines. While the imposition of such fines also may seem remote, why take the risk?

In sum, the takeaway for in-house counsel from all of this is clear: insert the statutorily mandated notice about lie detectors into your job applications. The cost is virtually nothing, and the downside risk of failing to do so is unknown.