During the pandemic, both employers and employees discovered that remote work could benefit them. For example, employers who are willing to allow employees to work away from the physical workspace discovered that they could cut back on their office space (and rent, utilities etc.), which has resulted in cost savings. In addition, not requiring everyone to work at the employer’s physical place of business has expanded the pool of applicants nationwide. From the employee’s perspective, they can save commuting time, are able to throw in a load of laundry during the workday, and can reduce expenses such as gas, professional attire, etc. Despite the advantages of a bigger pool of candidates and cost savings, we are beginning to see cases stemming from employers’ inadvertent violations of other states’ laws when making work available to other states’ residents. In Part 1 of a series of blogs on legal risks of hiring remote workers we address the application process.
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 on their applications statements regarding volunteer work. 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 or not the application is completed online. And, of course, employers must comply with Massachusetts “Ban the Box” rules. (See our blog for more information about Ban the Box.)
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 this law shall be subject to criminal penalties and civil liability.”
In a recent case, Baker v. CVS Health Corporation, an applicant alleged that when he applied for a job with CVS, the retail giant unlawfully failed to provide him 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 is 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, 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.
Other States’ Laws Regarding Job Applications
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? If a California resident is applying online for a position at your company, is there anything you are 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 another state’s application laws.
In our next blog, we will address pay transparency law concerns when hiring out of state workers.