Are lie detector tests legal during job interviews? According to the Employee Polygraph Protection Act (EPPA) enacted in 1988, it is prohibited for most private employers to use lie detector tests, either for pre-employment screening or during employment. Of course, subject to restrictions, the Act does permit lie detector tests to be used for applicants of security firms (armored car and guard) and pharmaceutical companies.

Which brings us to CVS, the national pharmacy chain. In Massachusetts, the company is facing a class action lawsuit claiming it violated state and federal prohibitions because it used a specific lie detector test through an Artificial Intelligence (AI) screening tool during job interviews. It’s an interesting case that should raise concerns when using AI Screening Tools to evaluate job applicants.

Violations of the federal EPPA can result in stiff penalties of more than $25,000. The state of Massachusetts not only prohibits employers from subjecting applicants and employees to lie detector tests, but also requires employers to include a notice on job applications that it is unlawful “to require or administer a lie detector test as a condition of employment or continued employment.”

In Baker v. CVS Health Corporation, the plaintiff alleges when he applied for a position with CVS, he was subjected to a lie detector test and CVS failed to provide him the required notice of his rights. The plaintiff is seeking $500 per violation, in addition to attorney fees and costs.

The complaint also claims CVS administered new video interview technology. During the virtual interview, the applicant answered a series of questions about integrity. The recording was then uploaded to Affectiva, a third-party platform which uses AI to analyze facial expressions, eyes and voice to determine if candidates are a proper fit, or even telling the truth. The plaintiff claims he was unaware the virtual interview was a lie detector test. He also said he would not have participated had he been aware of the AI process.

The court rejected CVS’s arguments to dismiss stating, the plaintiff’s alleged injury is the kind the Massachusetts statute is intended to protect. The plaintiff alleged because he did not receive legal notice regarding lie detector tests, he did not have a chance to treat the virtual interview more critically.

The Equal Employment Opportunity Commission (EEOC) has been examining AI issues in employment, launching its Artificial Intelligence and Algorithmic Fairness Initiative and releasing its 2024-2028 Strategic Plan. There is certainly more to follow.

This case – yet another involving AI – illustrates how new technologies can violate existing laws. With AI’s rapid advancements, and the present attention of the U.S. government, employers should be cautious with such tools and pay close attention to ongoing legal issues.

The information and opinions expressed are for educational purposes only and are based on current practice, industry-related knowledge and business expertise. The information provided shall not be construed as legal advice, express or implied.