Increase in Class Actions Alleging Violations of Massachusetts Lie Detector Statute
A federal court decision in Massachusetts denying a motion to dismiss a putative class action has spurred a potential wave of similar claims, all arising under the Massachusetts Lie Detector Statute. The statute requires employers to notify job applicants in writing that it is illegal to administer a lie detector test as a condition of employment.
A Massachusetts statute, ch. 149, § 19B, bars the use of lie detectors in certain employment situations and, since 1986, also requires all Massachusetts employers to provide affirmative notice on job applications that "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." In certain cases, the statute creates a private right of action, a right to class treatment, and sets minimum damages at $500 per claimant.
For nearly 40 years, nobody sought to enforce the notice requirement. That changed in April 2023, when two plaintiffs, represented by the same firm, brought putative class actions against Massachusetts retailers. One of those actions (against TJX Companies) was voluntarily dismissed within weeks. In the other, Brendan Baker sued CVS, alleging, among other things, that it had failed to notify him of the prohibition on the use of lie detectors. CVS filed a motion to dismiss the notice claim, arguing that there was no private right of action to enforce the notice requirement and that Baker had not suffered a cognizable injury. The district court rejected CVS's arguments in an Order denying the motion to dismiss earlier this year, although it noted that there is a split in authority about whether the injury requirement requires actual injury. The case settled in July.
In the ensuing two months, the same firm that represented Baker filed two new putative class actions against retailers in Massachusetts Superior Court, each alleging a violation of the Lie Detector Statute's notice requirement and seeking class treatment.
Subsequent cases may further clarify whether the notice requirement establishes a private right of action absent actual injury, but based on the preliminary success of the Baker action and the increase in enforcement activity, Massachusetts employers across all sectors should review their employment applications in the near term with a particular focus on the Lie Detector Statute's notice requirement.
