Class Action Litigation Over Massachusetts Lie Detector Statute Surges: What Employers Need to Know

Massachusetts employers are increasingly being targeted in a growing wave of class action litigation under the commonwealth’s longstanding law G.L. c. 149, § 19B. In relevant part, the law requires that all job applications “for employment within the Commonwealth” contain a notice to applicants stating that it is unlawful for employers to administer or require lie detector tests as a condition of employment or continued employment.

ALL MASSACHUSETTS APPLICATIONS MUST CONTAIN A REQUIRED NOTICE

G.L. c. 149, § 19B makes it unlawful for an employer to require or administer a lie detector test as a condition of employment or continued employment. The statute also requires that all job applications “for employment within the Commonwealth” contain the following notice:

• 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 statute’s definition of “lie detector test” 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.”

POTENTIAL DAMAGES

Any person “aggrieved” by a violation of the statute may institute within three years of such violation on behalf of themselves, or “others similarly situated, a civil action for injunctive relief and any damages thereby incurred.” An award for damages will be at least $500 “for each such violation,” and employers may also be subject to treble damages for “any loss of wages or other benefits.” Employees who prevail are entitled to “an award of the costs of the litigation and reasonable attorney fees.”

NEW WAVE OF CLASS ACTION LITIGATION

While the relevant law has been around since 1986, one New York–based law firm has spearheaded a recent wave of litigation, filing more than 20 lawsuits in the last year alone, many of which involve the same individuals bringing identical claims against multiple employers. These cases primarily focus not on actual lie detector use, but rather technical noncompliance with the statute’s written notice requirement.

NEXT STEPS FOR EMPLOYERS

Employers should take the following immediate steps to comply with G.L. c. 149, § 19B and mitigate the risk of litigation:

• Review Employment Applications: Ensure that every job application contains the required lie detector notice; the notice must appear in the job application itself and not another document in the application process, such as the job posting. Best practice would also be including the notice in job applications for remote positions where the applicant could be based in Massachusetts.
• Review Hiring Practices: Review hiring practices to ensure that no testing or screening methods could be perceived as “lie detector tests” under the commonwealth’s broad definition articulated above. For example, in a recent federal district court decision, the court found that a video-interview technology developed by a company to screen job applicants met the definition of a lie detector test pursuant to the statute.
• Audit Third-Party Hiring Vendors and Platforms: To the extent third-party recruiting firms and job application platforms are used, verify that the required notice is included in job applications offered on those platforms.
• Train Human Resources and Recruiting Teams: Make sure all hiring staff understand the requirements of the statute and the risk of technical violations—even when no lie detector test is actually administered.