What happens when an analog law meets the digital age? Wiretapping, which includes video and audio recording of conversations, requires consent under the law in many states. In Massachusetts, the Wiretap Statute provides criminal and civil penalties in the event someone records a conversation without the required consent. Yet a recent case found that the state’s wiretap statute does not bar an employer from using an allegedly illegally obtained recording in a civil proceeding. How did the court get there and what does it mean for your workplace?
THE FACTS: A workplace argument between the plaintiff and a subordinate was recorded without consent and forwarded to their employer, the defendant. According to the subordinate, the exchange was heated and included profanity, demeaning and threatening statements. The plaintiff was placed on administrative leave while the employer investigated, and she ultimately resigned. She sued, alleging discrimination, retaliation and violation of the state wiretap law. The employer claimed it deliberately excluded the recording, using interviews and other evidence in its investigation. The plaintiff claims that at a meeting with HR she was told to resign or be terminated for several reasons. The plaintiff claims the information leading to those reasons could only be obtained from listening to the “illegal tape recording.”
THE QUESTION: The employer sought a determination that the recording would be admissible on summary judgement against the plaintiff’s case. The plaintiff claimed the use of the recording would violate the Wiretap Statute. The judge disagreed, finding that nothing in the Wiretap Statute would bar its use in a civil proceeding and that the Wiretap Statute is limited to criminal trials, not civil proceedings,
TAKEAWAYS: This was a narrow question on the admissibility of evidence in a civil proceeding. The ruling seems to suggest that employers could use allegedly illegally obtained recordings in the workplace if the employer was not involved in recording the interaction. We strongly advise against this approach. This is a slippery slope in the age of ubiquitous recordings. If employers begin to use illegally recorded interactions in making employment decisions, then they are essentially encouraging employees to continue this illegal conduct. Be careful when an employee comes to you with a recording made without consent. The risks of the wiretap law still outweigh the use of surreptitious recordings.
Finally, always assume you are being recorded. Because you probably are.
QUESTIONS? We have answers! We can help. Day in, day out we field calls from employers nationwide as part of our fixed fee Employment Counsel On-Call Triage Service.