Massachusetts law, G.L. c. 149, § 19B, has long banned the use of lie detector tests in employment, and since 1986, also states that employers should provide affirmative notice on all job applications regarding the use of lie detector tests.
Claims under this law rarely arose until 2023, when a job applicant sued his employer, alleging, among other things, that it had failed to notify him of the prohibition on the use of lie detectors. Since then, there has been a surge of litigation against large Massachusetts employers for technical violations in failing to include the required disclaimer in their job applications.
The Lie Detector Notice
The statute prohibits employers from requiring or administering a lie detector test as a condition of employment or continued employment. The statute also states that all job applications for “employment within the Commonwealth” should contain the following notice 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.
Any “aggrieved” individual may institute a civil action within three years of any such violation, both on behalf of themselves and others similarly situated. If a violation is found, the statute suggests that an employer may be subject to $500 in statutory damages “for each such violation,” among other penalties. (Courts have not yet defined key terms, including “aggrieved” and “each such violation,” and have not clearly addressed what a person must prove in order to sue under this law.)
What Can Employers Do?
Confirm Job Applications Contain Notice
The best way to help avoid litigation is to confirm that every job application (not job posting) within Massachusetts contains the lie detector notice, exactly as stated in the statute. This includes every version of the employment application – paper, digital, and third-party platforms.
Review Hiring Practices, Including AI Software
Employers should also review hiring practices to ensure that no testing or screening methods could be perceived as “lie detector tests.” The law defines “lie detector” broadly beyond a polygraph and includes: “any test utilizing a polygraph or any other device, mechanism, instrument or written examination, which is operated, or the results of which are used or interpreted by an examiner for the purpose of purporting 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.” Employers should carefully evaluate the methods they use to determine the truthfulness of job applicants or current employees. Whether using hiring software, artificial intelligence (AI), or other means, it is possible that these tools could be considered lie detector tests under the statute.
Audit Third Parties
Employers should also audit any third-party recruiting firm or job application platform used, to verify that the lie detector notice is clearly visible in the job applications.
Train HR Staff
Employers should make sure all hiring staff know not to use or suggest lie-detector tools, even digital ones, during interviews.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
