Pre-Employment Testing

Lie detector tests have generally been banned from use in the hiring process for a number of years.  When the average person thinks about a lie detector test, they imagine a person being hooked up to a contraption that measures the individual’s physical reaction when answering questions posed to them.  The purpose of the lie detector is to determine whether the person has a biological response to the question-and-answer process that would indicate that they are lying.  Such a response may be sweating, an increased heartbeat, etc.  Because of the unreliable nature of lie detectors, their use has largely been banned in the employment process.  Employers have looked for other ways to determine an applicant’s or employee’s honesty and judgment and a recent case in Massachusetts involving Amazon has shown that these new methods may fall within the same prohibitions contained in the laws limiting lie detector tests.

            In Korn v. Amazon.com, Inc, Civil Action No. 25-10802-WGY (https://www.bloomberglaw.com/public/desktop/document/KornvAmazoncomIncDocketNo125cv10802DMassApr032025CourtDocket/1?doc_id=X7RPB0967VV8SSQO8H8FUL8UFLD), an applicant for a position with Amazon in Massachusetts filed a putative class action suit against Amazon on the basis of a “Workstyle Assessment” used by Amazon to screen job applicants.  In the class action, Korn alleged that Amazon had failed to provide the notice required under the law that it would require applicants to undergo a lie detector test and to include in that notice that such tests were prohibited by law.  Amazon moved to dismiss the case on the basis that the “Workstyle Assessment” was not a lie detector test.  Finding that the Amazon test was a written examination that was used to determine the honesty of an individual and falls within the definition of a lie detector test in the statute, the Court rejected Amazon’s motion to dismiss.  The Court also rejected Amazon’s argument that the test in question was more in the nature of a personality test and not a lie detector test. 

            This case is a reminder to all employers that the screening of applicants, using AI tools or administering certain tests or evaluation tools that are reviewed by software programs or by individuals, is being scrutinized by courts and applicants alike.  While employers are permitted to screen applicants to find the best qualified candidates for a particular job, the screening process and the tools that can be used for this purpose are limited by law.  myHRcounsel can assist employers in ensuring that their hiring practices are up to date and compliant with all federal and state labor laws.