CVS Settles Prospective Employee Lie Detector Lawsuit

Just the Facts

In January 2021, the plaintiff in the case, Brendan Baker applied for a job with CVS in Massachusetts, and was given an interview. Although Mr Baker was unaware of it at the time, CVS was using an employee screening company HireVue to assess potential employees as well as their truthfulness. Interviewees were asked a set of questions online while being videotaped. Questions included things such as ‘what does integrity mean to you?,’ ‘what would you do if you saw someone cheating on a test?,’ and ‘have you ever acted with integrity?’ HireVue then used an artificial intelligence (AI) programming interface to assess the video.

The AI technology tracks and analyzes expressions, vocal intonation, speech inflection, and eye contact, among other things, in order to assess whether the applicant is a proper fit for the company.

CVS ultimately did not hire Mr Baker.

Mr Baker lives in Massachusetts, where a state law requires job applicants to be notified and be able to opt out of lie detector tests for the purposes of interviews. In late 2023, Mr Baker filed a lawsuit against CVS Health Corp. and CVS Pharmacy, alleging that he was essentially subjected to a lie detector test (AI assessing his interview) without any warning or the opportunity to opt out. As part of the case, the plaintiff sought to turn it into a class action suit including as plaintiffs anyone who had applied for a CVS job in Massachusetts.

The Case

Earlier this year, CVS made a motion to dismiss the case, arguing that the plaintiff had no standing to sue since he had not alleged any harm. The judge disagreed with CVS and allowed the claim to proceed, finding that the plaintiff’s participation in the interview without being aware that it could constitute an unlawful lie detector test was sufficient to give him legal standing to sue.

In mid-July 2024, a Notice of Tentative Settlement was filed in the case. The settlement was an individual settlement only, as the class action was never certified. The settlement notice does not say what the terms of the settlement are, but asked for a stay until the end of September ‘while the parties document and then fulfill the obligations (such as payment) of the agreement.’

The Takeaway

A federal law – the Employee Polygraph Protection Act enacted in 1988 – prohibits most private employers from using lie detector tests during hiring. While this wasn’t specifically a lie detector test, the AI in this case was attempting to act like a lie detector and assess an applicant’s sense of integrity. Employers and employees alike should beware the use of AI in hiring – a practice that is becoming more and more prevalent. It creates possible ethical issues, and has the potential to promote discrimination. Companies that are using it should make applicants aware of the fact.

References

Baker v CVS Health Corporation and CVS Pharmacy, Inc. 1:23-cv-11483-PBS (2024).

Baker v CVS Health Corporation and CVS Pharmacy, Inc. 1:23-cv-11483-PBS, 2nd Amended Class Action Complaint (2024).