Using New Technology to Vet Job Applicants Can Violate the Massachusetts Lie Detector Statute….

In March I published a post about the risks associated with using background checks to vet new employees. A recent decision in the Federal District Court, Baker v. CVS Health Corp., highlights a related peril: using interview technology to evaluate job candidates could run afoul of the Massachusetts Lie Detector Statute. While you may not have known there was a Lie Detector Statute – I sure didn’t – if you use or are considering using interview technology to vet job candidates, keep reading….

According to the complaint in Baker, CVS uses a video-interview technology developed by a company called HireVue, Inc. to screen job applicants. Essentially, candidates answer a series of questions, and video of their facial expressions, eye contact, voice intonation, and inflection are analyzed using artificial intelligence. The complaint then goes on to assert that HireVue uses this analysis to determine the degree to which applicants would be a “cultural fit” with CVS. Further, HireVue apparently also has stated that it can (i) detect whether an applicant “[h]as an innate sense of integrity and honor,” (ii) help with “lie detection,” (iii) “screen out embellishers,” and (iv) report on applicant competencies including “reliability, honesty, [and] integrity.”

In January of 2021, Brendan Baker applied for a position with CVS, and CVS deployed HireVue as part of his interview process. Baker did not get hired and then sued, claiming that CVS violated the Lie Detector Statute because he was not given an opportunity to opt out of the video screens or to meaningfully challenge the assessments of him that HireVue rendered. To make matters even worse for CVS, Baker brought his suit as a class action.

CVS moved to dismiss by arguing, first, that Baker lacked standing because he only pleaded a procedural violation without showing any concrete harm. Judge Saris disagreed, ruling that Baker:

[H]as plausibly alleged that as a downstream consequence of not receiving notice, he participated in a HireVue Interview. Although the notice would not have specifically informed Baker that the HireVue Interview was a lie detector test, it would have primed him to view the interview more critically.

Next, CVS contended that Baker’s claim should be dismissed because the Lie Detector Statute did not authorize private suits to enforce its notice provision. Again, however, Judge Saris disagreed, stating that “the Lie Detector Statute authorizes suit by ‘[a]ny person aggrieved by a violation of subsection (2),’ which includes the notice requirement.” Thus, CVS’s Motion to Dismiss was denied, and it now faces the prospect of defending a class action.

So while the brave new world of AI technology, no doubt, can be incredibly useful, in-house counsel need to understand the ramifications of using it for job vetting. Failing to do so can lead to the same unfortunate situation in which CVS now finds itself.