During the pandemic, both employers and employees discovered that remote work could benefit them. Allowing remote work has expanded employers’ pool of applicants nationwide. Despite the advantages of a bigger pool of candidates and cost savings, we’re beginning to see cases stemming from employers’ inadvertent violations of other states’ laws when making work available to other states’ residents. Additionally, as always, Massachusetts employers must continue to comply with all Massachusetts state laws too. Some issues that employers need to pay careful attention to are discussed in this article.
Massachusetts Laws Governing Job Applications
Massachusetts has specific laws about job applications. Employers who are legally compliant with their “paper” applications may be out of compliance when it comes to online postings. For example, Massachusetts requires employers to include statements about volunteer work on their applications. Specifically, in the work history section, employers must include language advising applicants that they may include in their work history “any verified work performed on a volunteer basis.” That language must be on the application whether the application is completed online.
And, of course, employers must comply with Massachusetts “ban the box” rules, which makes it unlawful for most employers to ask about criminal history on a job application.
In addition, Massachusetts law requires that all applications contain 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 that law is subject to criminal penalties and civil liability.
Recent Case Highlights Legal Risks
In a recent case, an applicant alleged that when he applied for a job with CVS, the retail giant unlawfully failed to provide him with the required notice under the Massachusetts Lie Detector Statute.
According to the applicant, this resulted in him undergoing questioning that he maintains was aimed at determining whether he was being truthful. To screen applicants, CVS administered a video-interview technology developed by a company called HireVue, Inc.
During the HireVue interview, an applicant answers a series of questions while being video recorded. These include questions like, “What does integrity mean to you?”; “What would you do if you saw someone cheating on a test?”; and, “Tell me about a time that you acted with integrity.”
HireVue then uploaded recordings of applicants’ responses to a third-party platform called Affectiva, which analyzed candidates’ facial expressions, eye contact, voice intonation, and inflection using artificial intelligence. The information was then used to assess whether the applicant is a good fit for CVS.
The candidate claimed the testing was assessing his truthfulness in violation of the Lie Detector Statute. Although the case is only in its initial stages, when CVS asked the court to dismiss the claim, the court denied that request.
In doing so, the court recognized that the failure to include the lie detector language on the application could subject the employer to civil liability. Only time will tell what that liability will be, if any. Baker v. CVS Health Corporation, Civil Action No. 23-11483 (D. Mass. Feb. 16, 2024)
Bottom Line
Even if your organization complies with the Massachusetts statutes, do you know whether it is complying with other states’ requirements when it comes to applications?
Are other states’ “ban the box” laws different than Massachusetts’ law? If a California resident is applying online for a position at your company, is there anything you’re required to include on the application? Did you know that Maryland also has a lie detector statute?
As more and more class action lawsuits are arising from internet-based hiring practices, now is the time to take a close look at who your application may reach, and whether your application is in violation of state application laws.
Marylou Fabbo is a Partner at the firm of Skoler, Abbott & Presser, P.C., and can be reached at MFabbo@skoler-abbott.com.