Surreptitious recording in workplace admissible

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The state’s wiretap statute does not bar an employer from using an allegedly illegally obtained recording in a civil proceeding, a Superior Court judge has found.

Similar issues are likely to crop up in employment matters with increasing frequency, given the ease with which cellphones can record audio and video in the workplace, lawyers predict.

In Simpson v. Boston Public Health Commission, a former employee of the defendant is suing for discrimination and retaliation under state and federal law. She also brought two counts for violation of the wiretap statute, G.L.c. 272, §99.

At the heart of the case is a workplace argument between the plaintiff and a subordinate, which led the plaintiff to be placed on administrative leave and, according to the plaintiff, compelled her to resign. The subordinate recorded the altercation — allegedly without the plaintiff’s consent — and then forwarded it to supervisors at their employer, the defendant.

The plaintiff’s wiretap claims are premised on the fact that the statute outlaws not just the making of an unauthorized recording but the disclosure or use of such a recording.

Judge Julie E. Green’s decision comes in the context of a defense motion, which sought a determination that the recording would be admissible on summary judgment. The plaintiff opposed that motion, contending that that use, too, would violate the wiretap statute.

But Green sided with the defendant.

“Nothing in the Wiretap Statute bars the use of an allegedly illegally obtained communication in a civil proceeding,” the judge wrote, noting that the only remedies in the statute are criminal and civil penalties, not exclusion of evidence in a civil proceeding.

“Indeed, the Wiretap Statute contains explicit provisions about the use of illegally obtained communications in evidence, but those provisions are limited to criminal trials; there are no provisions limiting the use of such communications in civil trials,” she wrote.

Green added that while it was beyond the scope of the defendant’s motion, any civil claim against the defendant under the wiretap statute for use of the recording as evidence in a civil proceeding would likely be barred by the litigation privilege.

The two-page decision is Lawyers Weekly No. 12-049-24.

Incentivizing spying?

The state’s wiretap statute was designed to address a problem in the criminal realm with unauthorized surreptitious recordings of conversations forming the basis of charges, said John F. Tocci of Westwood, who represents the defendant in Simpson.

But issues with unauthorized recordings are now arising all the time in the civil context because recording devices are ubiquitous, he added.

“We all have recording devices on our phones,” he said.

Given that ubiquity, Boston employment attorney David I. Brody said the “practical advice for individuals is to assume you’re being recorded and act accordingly.”

Boston employment attorney Monica R. Shah said she is concerned about the message that is sent if employers can make use of unauthorized recordings in the workplace.

“If employers are allowed to rely on recordings made in violation of the wiretap law, it incentives further violations to occur,” she said. “It incentivizes employees spying on each other.”

Shah also noted an “asymmetry.” She has always counseled employees to take written notes on workplace meetings and conversations rather than record. But the Simpson case seems to say employers will be allowed to benefit from unauthorized recordings, at least if they have not had a hand in their creation.

However, Shah believes the language of the wiretap statute clearly prohibits the willful disclosure of an “interception.” She said she would still caution a human resources officer or manager who receives such a recording to proceed with extreme caution.

Indeed, just knowing that an improper recording exists may create real problems for an employer, Brody warned.

Here, the judge seemingly made the right decision on the limited issue of the recording’s admissibility based on the language in the statute, Brody noted.

When I have someone who comes in and says, ‘I’ve got that on tape,’ I cringe because the [wiretap] statute carries criminal penalties along with civil penalties.

But refusing to listen to the recording — as the employer claimed it had done in Simpson — may not get it completely off the hook, Brody said. For example, during an investigation, it might interview employees who had listened to the recording to refresh their recollections.

“When I have someone who comes in and says, ‘I’ve got that on tape,’ I cringe because the [wiretap] statute carries criminal penalties along with civil penalties,” Brody said. “If anybody asks me, ‘Should I be taping?’ The answer is a hard ‘no.’”

Brody said he learned a hard lesson from representing superintendents bringing claims against School Committee members.

“Everything was videotaped, and it didn’t stop everybody from disputing what happened at those meetings,” Brody said. “There is no absolute truth out there, at the risk of being philosophical. People take these recordings thinking it will vindicate their side, and what they misunderstand is that there are three sides to every conversation, and how you hear it changes how you present it or understand it.”

As a result, the risk the wiretap statute presents outweighs the value of a surreptitious recording, Brody believes.

Someone hearing about the Simpson decision without a broader understanding of the wiretap statute might reach the opposite conclusion, Brody acknowledged. He suggested that the Legislature could clarify the situation by outlawing the use of unauthorized recordings in civil proceedings, if it agreed that “you shouldn’t have to worry about being recorded everywhere you go” is good public policy.

Another option, Shah said, would be to create an exemption for an employee engaged in protected activity or documenting incidents of discrimination or harassment.

The plaintiff’s attorney, Patrick Long of Dorchester, said he continues to think Green made the wrong decision for the reasons he argued in his opposition. He was unavailable to discuss the case further.

Key evidence

Plaintiff Nicole Simpson, an African American woman, worked at the Boston Public Health Commission until resigning in late 2017.

In the complaint she filed in Suffolk Superior Court in December 2020, Simpson claims she was forced to resign for actions for which similarly situated white employees were routinely not disciplined.

Specifically, she alleges that, for eight years, a subordinate was “permitted to harass her in ways which would not have been tolerated if directed at a white manager.”

Shortly after the subordinate filed an MCAD complaint against Simpson and the Boston Public Health Commission, Simpson and the subordinate got into an argument at their workplace on Dec. 5, 2017, which the subordinate recorded. The parties dispute whether Simpson gave permission to record the heated exchange, which the commission describes in a court filing as a “lengthy profanity-laden barrage” that included both “demeaning and threatening statements” and a racial slur referring to the subordinate’s family.

The commission placed Simpson on unpaid leave the next day and began an investigation. The attorney who conducted the investigation deliberately excluded — and did not even listen to — the subordinate’s recording of the incident, instead basing the investigation on interviews and other evidence, according to the commission.

In advance of a meeting on Dec. 14, 2017, the commission had drafted a notice of termination, but Simpson instead tendered her immediate resignation.

Simpson claims that, at the Dec. 14 meeting, the commission’s HR director had given her two choices: resign or be terminated for a list of reasons that the HR director had compiled “mainly from information he could have only obtained from listening to the illegal tape recording.”

Simpson also alleges that the commission “doubled down” on the use of that information in its response to the MCAD complaint she filed.

Simpson’s six-count complaint includes claims for discrimination and retaliation under state and federal law along with two counts under the state wiretap law, G.L.c. 272, §99.

Because Simpson had denied engaging in the behavior that led to her separation from the commission, the recording is an “exceptionally important and compelling piece of evidence,” the commission argues in support of its motion to be allowed to use the recording or a transcription of it at the summary judgment stage and beyond.

Relevance of precedent not reached

In reaching her decision on the commission’s motion, Green did not engage with the precedent the parties deemed most relevant to the issue at hand, including a 2020 decision by U.S. District Court Judge Patti B. Saris in Baldwin v. Town of West Tisbury.

Baldwin involved a surreptitious recording by one airport taxicab driver of another driver who berated him with profanity and antisemitic slurs. The driver who had been berated then submitted a transcription of the secret recording to the police in a letter, which informed the Board of Selectmen’s decision to revoke the profane driver’s permit to drive a taxi in the town.

The plaintiff in Baldwin argued that the town authorities had “used” the complaint letter in the proceedings against him. But Saris noted that the Supreme Judicial Court had rejected that interpretation of the phrase “uses such communications” in the wiretap statute in the 2005 decision Commonwealth v. Rivera.

The plaintiff in Simpson argued that Baldwin was “wholly inapplicable” to her case because the holding in Baldwin relied on the wiretap statute’s limited definition of “investigative officer.”

“It did not create a general right for all government agencies to use wiretaps at all times,” the plaintiff’s opposition to the commission’s motion states.

The commission counters that the subordinate’s provision of the recording of Simpson to her supervisors was analogous to the situation in Baldwin, especially given that the applicable antidiscrimination laws and policies required the commission’s HR department to investigate promptly the subordinate’s complaint.

The parties also sparred over the applicability of the SJC’s 1997 decision in O’Sullivan v. NYNEX Corp. In the commission’s telling, the court in O’Sullivan recognized a “legitimate business purpose” exception to the general rule that it is illegal for an employer to eavesdrop on an employee’s business calls. O’Sullivan recognized that conversations between employees and customers could be monitored as necessary for training and supervision.

The SJC also mentioned that employers may record private conversations of employees when they suspect that an employee is using the phone in an unauthorized manner or engaged in defrauding the employer.

“Certainly, maintaining discipline in the workplace and protecting employees from abusive supervisors (or supervisors from abusive subordinates) is a legitimate business purpose for directly recording an employee communication,” the commission writes in support of its motion. “Certainly, it provides a legitimate — and necessary — basis for accepting a recording from an employee who was bullied and berated by her supervisor.”

But the plaintiff counters that O’Sullivan is inapplicable because it relied on a “limited carveout” not applicable to the situation in Simpson, one that hinged on a determination that “telephone equipment” did not constitute an “intercepting device” under the wiretap law.