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Secret Recording of Supervisor Admissible in Civil Case

Posted on February 3, 2025

A Massachusetts judge recently denied an employee’s request to exclude an audio recording of her interaction with a subordinate from her discrimination case against her employer.  The subordinate recorded the employee’s “tirade” without her consent, and the employee argued that the secret recording violated the Massachusetts Wiretap Statute (M.G.L. c. 272, §99) and, therefore, should not be allowed as evidence in her discrimination case.

The plaintiff is a supervisor at an independent public agency in Boston.  The recorded incident resulted in her being placed on administrative leave without pay, and she ultimately resigned.   She filed a claim against the employer in Superior Court with six counts: four counts of discrimination and retaliation and two counts for violating the Wiretap Statute.  The judge’s ruling does not specify the basis for the discrimination and retaliation claims, as at this stage of the litigation, it only addresses the Wiretap Statute claims.

The employer had submitted a transcript of the employee’s argument with the subordinate as evidence that its decision to place the employee on leave was justified and was not made with discriminatory intent.  The court agreed that the transcript is admissible, finding that the Wiretap Statute does not bar the use of illegally obtained communication in a civil proceeding.  The Wiretap Statute includes civil and criminal penalties but does not explicitly limit the use of communications obtained through illegal wiretapping in a civil trial.  The court also cited a case finding that parties have immunity from civil claims arising from statements and actions made during a judicial proceeding.

Would the outcome have differed if the employee had recorded instead of the subordinate?

This case is in the early stages, and the evidentiary ruling may be appealed.  The employee argues that the “fruit of the poisonous tree” doctrine should apply.  The doctrine is used primarily in criminal cases and prevents the admission of evidence obtained through illegal means.

Employers should become familiar with the Wiretap Statute, which provides for civil and criminal penalties for recording another individual’s words without the individual’s knowledge or consent.  Employers policies should prohibit using cell phones in the workplace to record others without prior approval.  Although, in this case, the recording gives the employer an advantage in defending its actions, the recording could be problematic for the employer in many other circumstances.

Need Guidance?

If AIM members have questions about the Wiretap Statute or any other HR matter, they may call the AIM HR Helpline at 800-470-6277 or helpline@aimnet.org.