New England Biz Law Update
A Massachusetts trial court judge has ruled that employers may use recordings obtained in violation of the state’s wiretap statute as evidence in civil proceedings, a decision that could impact workplace privacy and employment litigation.
The ruling came in Simpson v. Boston Public Health Commission, where Judge Julie E. Green found that while Massachusetts law prohibits unauthorized recording of conversations, it does not bar the use of such recordings as evidence in civil cases.
The decision addresses growing concerns about surveillance in an era where recording devices are ubiquitous through smartphones.
Workplace argument
The case stemmed from a workplace dispute between Nicole Simpson, a former Boston Public Health Commission employee, and her subordinate.
The subordinate recorded a heated argument without Simpson’s consent and shared it with supervisors, leading to Simpson being placed on administrative leave. Simpson subsequently resigned and filed discrimination and retaliation claims, along with allegations of wiretap statute violations.
In her decision, Green emphasized that while the state’s wiretap statute provides criminal and civil penalties for illegal recordings, it does not explicitly prohibit their use as evidence in civil proceedings. The statute’s provisions regarding inadmissibility of evidence are specifically limited to criminal trials.
Danger ahead?
Legal analysts note that the decision creates an unusual dynamic in which making a recording might be illegal but using it as evidence in civil litigation is permissible. Others expressed concern that it could incentivize employee-to-employee spying.
The ruling has led to calls for legislative action, with some suggesting that lawmakers should either explicitly ban unauthorized recordings in civil proceedings or create exemptions for employees documenting discrimination or harassment.
Employers advised not to record
In Simpson V. Boston Public Health, the plaintiff alleged she was reprimanded based on information that her employer “could have only obtained from listening to the illegal tape recording.”
However, the defendant’s investigating attorney said they deliberately did not listen to the audio file. Employers are generally advised to seek legal counsel before reviewing employee-recorded material that may have been obtained illegally.
Employment attorneys continue to advise against making unauthorized recordings, noting that the wiretap statute’s criminal and civil penalties outweigh potential benefits, despite the new ruling on admissibility. The decision may face further scrutiny as similar cases emerge.
