A job applicant’s lawsuit against a large pharmacy chain for violation of the Massachusetts ban on lie detector tests in employment recently survived the chain’s motion to dismiss.  We first wrote about this case last year in an article about artificial intelligence soon after it was filed in the federal district court in Boston.  As noted in the earlier article, employers using artificial intelligence must ensure that the technology is compliant with the law.

The rejected applicant learned that during his interview the employer had utilized video technology that analyzes facial expressions, eye contact, tone of voice, and inflection to assess the candidate’s “integrity and honor.”   The applicant sued under M.G.L. ch. 149, § 19B, which prohibits the use of “a polygraph or any other device, mechanism, instrument or written examination, . . . to assist in or enable the detection of deception, the verification of truthfulness, or the rendering of a diagnostic opinion regarding the honesty of an individual.”

The statute requires employers to include on every job application the following statement:

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.

The pharmacy chain’s job application did not contain the required language.

The pharmacy chain’s motion to dismiss did not argue that the technology violated the statute; rather, it argued that the statute does not provide a private right of action, and alternatively, that the applicant had not suffered concrete harm and therefore failed to state a claim under the law.  The court first looked at the latter question and determined that the applicant had established a “concrete informational injury” in the employer’s failure to provide the required notice under the statute on its application.  Even though the notice would not have informed the applicant that the video technology included a lie detector test, the information contained in the required statement is designed to protect against exactly the injury that occurred.

On the other basis for the motion to dismiss, the court looked to the plain language of the statute and determined that the applicant has a private right of action for a violation. The statute clearly indicates that any person “aggrieved by a violation” may institute a “civil action for injunctive relief and any damages thereby incurred, including treble damages . . .”    The law provides for injunctive relief and attorneys’ fees to be awarded to a prevailing plaintiff.  It also sets out civil penalties between $300 and $1500 for violations, as well as the potential for imprisonment for up to ninety days.

When the Massachusetts legislature first enacted the lie detector law in 1959, it could not have envisioned the technological advances that gave rise to this lawsuit.  The purpose of the law was to protect employees from being subject to a polygraph, a technology that was then (and still is) considered to be of questionable value in testing whether a subject is being truthful.  The federal Employee Polygraph Protection Act, enacted in 1988, similarly prohibits employers from requiring employees to take a lie detector test.

The Massachusetts law requirement of the lie detector statement on job applications may be viewed as antiquated, and some employers may have dropped it from their applications, but this case is a strong reminder that it remains a requirement.

If members have questions about hiring or any HR matter, they may call the AIM HR Helpline at 800-470-6277.