Judge: job applicants can’t sue over lie detector violation

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A Suffolk Superior Court judge has ruled that job applicants needed to show some form of tangible harm in order to proceed with putative class actions alleging that four national retailers violated state law requiring notice on job applications that it’s unlawful for employers to require lie detector tests.

On Nov. 25, Judge Christopher K. Barry-Smith in Ababio v. Nike Retail Services, Inc., et al. dismissed putative class actions against Nike Retail Services, Inc., Bloomingdales, LLC, Warby Parker, Inc. and Walmart, Inc.

The four cases had been consolidated in the Business Litigation Session. In each case, the plaintiffs alleged that the defendants violated G.L.c. 149, §19B(2)(b), which provides that all applications for employment must contain a notice stating: “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.”

The defendant employers moved to dismiss on the ground that the plaintiffs lacked standing. According to the defendants, the plaintiffs did not qualify as “persons aggrieved” within the meaning of the state’s lie detector statute because they were never subjected to lie detector tests when they applied for jobs, and because none of the defendants used lie detector tests in their hiring processes.

In granting the defendants’ motion to dismiss, Barry-Smith found the fact that the lie detector statute authorizes statutory damages of at least $500 per violation did not alleviate the burden on the plaintiffs to show some form of harm to establish standing to sue.

Surveying case law interpreting “person aggrieved” used in other Massachusetts laws, the judge concluded that to qualify as a person aggrieved under the lie detector statute a plaintiff must “establish a nonspeculative harm that is more than minimal or slightly appreciable.”

Barry-Smith determined the plaintiffs failed to meet that standard.

“Here, the only harm alleged is plaintiff’s failure to receive, within the employment applications they completed, the required statutory disclosure that lie detector tests are prohibited,” the judge wrote. “However, where none of the defendants use lie detectors, and consequently no plaintiff was subjected to a lie detector test, the deprivation had no actual impact. It caused no appreciable harm — on plaintiffs, their employment applications, their decision-making, or their lives. The deprivation indeed infringed plaintiffs’ legal right — in receiving a required disclosure — but any harm was de minimis, purely technical, not an appreciable harm. Such a plaintiff is not a person aggrieved, and lacks standing.”

David S. Godkin of Birnbaum & Godkin in Boston represents plaintiff Dzigbodi Ababio and filed a brief on behalf of the consolidated plaintiffs in opposition to the defendants’ motion to dismiss. Godkin did not respond to a request for comment prior to deadline.

In the plaintiffs’ brief in opposition, Godkin wrote that the “Defendants improperly seek to impose a ‘substantial injury’ requirement akin to the federal Article III standing requirement of injury-in-fact. But the Statute here expressly states any ‘person aggrieved’ has standing to bring suit, and Plaintiffs are aggrieved under the Statute because they did not receive the required statutory notices.”

Daniel B. Klein of Seyfarth Shaw in Boston represents Nike and co-authored the brief in support of the consolidated defendants’ motion to dismiss.

Klein declined a request for comment but in the defendants’ brief argued that the language of the state’s lie detector statute operated to define “person aggrieved” in terms of those who were actually subjected to unlawful tests or those who were unlawfully requested to take a test by an employer. As precedent for that proposition, Klein cited a 2016 BLS case, Auguste v. G4S Solutions.

“[A]s this court has previously concluded, the text and structure of the statutory scheme indicate the Legislature’s intent to confine the private right of action in [G.L.c. 149,] §19B(4) to violations of the testing provision,” Klein wrote. “As such, there is no private right of action under the Notice provision that plaintiffs invoke, and they lack standing to pursue a civil action under §19B(4).”

But Barry-Smith rejected the defendants’ “text and structure” argument.

“Defendants’ interpretation illogically requires, without explanation, that I ignore standard convention with respect to the numbering and ordering of statutory sections, subsections, and subparagraphs,” the judge wrote.

Instead, Barry-Smith rested his decision to grant the motion to dismiss on his finding that the plaintiffs were not persons “aggrieved” under the statute.

Kevin C. Merritt, an employment attorney in Woburn, says the decision raises some troublesome questions.

“As I read the decision, I found myself asking whether this renders the notice requirement gratuitous — a surplusage — because now it seems like we can’t have a cause of action for just a notice violation; we can only have a cause of action for a notice violation when it is paired with the employer actually using a lie detector inappropriately,” Merritt says. “I’m not sure I entirely agree with the logic, but it’s not the only area [in the law] where I’ve seen this kind of doctrine created.”

Employment lawyer Joshua N. Robbins of Maura Greene Law Group in Boston says Barry-Smith’s decision runs contrary to the plain language of the statute.

“The plaintiffs have standing and are an aggrieved party, where it is undisputed that the prospective employers failed to include the statutory notice provision,” Robbins says.

According to Robbins, the decision diminishes the effectiveness of the notice provision in the state’s lie detector statute.

“Relying on this decision, employers may feel emboldened to omit this notice provision,” Robbins says. “This only hurts prospective employees, many who are likely not aware of this statute and their rights.”