On January 2, 2025, Superior Court Judge Julie E. Green ruled that a secretly recorded conversation was admissible in court. In the case Simpson v. Boston Public Health Commission, Ms. Simpson, the plaintiff, sued for employment discrimination and retaliation, and two counts of violating the Wiretap Statute, G.L. c. 272, § 99.
The central issue in the case revolves around a workplace argument between Ms. Simpson and a subordinate, during which Ms. Simpson berated the subordinate in what was termed a “vulgar tirade.” The subordinate recorded the conversation allegedly without Ms. Simpson’s consent and subsequently forwarded it to supervisors at the Boston Public Health Commission (BPHC). Following the altercation, Ms. Simpson was placed on administrative leave without pay which ultimately led to her resignation. She asserted that BPHC used the unauthorized recording when making its employment decision, in violation of G.L. c. 272, § 99. BPHC asserted they did not listen to the recording before making their decision.
Prior to filing a motion for summary judgment, BPHC asked the Court to determine whether the recording was admissible as evidence. Judge Green ruled that the Wiretap Statute does not prohibit the use of the recording, or transcripts of that recording, as evidence in this case. Specifically, Judge Greene noted that while the Wiretap Statute prohibits unauthorized recording of conversations, and bars the introduction of illegally obtained communications in evidence in criminal trials, it does not impose the same restriction in civil proceedings.
Cellphones and other devices with integrated recording capabilities are everywhere, increasing the likelihood that unauthorized workplace recordings will continue to occur. Employers are strongly advised to consult legal counsel before reviewing or taking any action regarding such recordings to ensure compliance with the law and mitigate potential risks.
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