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Massachusetts’ Superior Court Judge Rules Recording in Workplace Admissible

February 19, 2025

The Massachusetts Superior Court found that Massachusetts’ wiretap statue does not bar employers from using allegedly illegally obtained recordings in civil proceedings. In a recent case, an employee claimed she was forced to resign. Plaintiff’s coworker recorded an argument between the Plaintiff and her supervisor without her consent and shared it with supervisors. The employee then sued for discrimination and retaliation, along with two counts for violation of the wiretap statute.


Massachusetts is a two-party consent state but, in this case, it was found that the consent of only one party was needed because nothing in the Wiretap Statute bars the use of an allegedly illegally obtained communication in a civil proceeding. The court found that the provisions about the use of illegally obtained communications in evidence are limited to criminal trials. However, depending on the court, results may differ, as this recording was central to proving and/or disproving the Plaintiff’s claim, and as such, the recording was indispensable as a piece of evidence. Issues with unauthorized recordings have been arising all the time in civil proceedings because recording devices are everywhere, whether they be a cell phone, laptop or other recording device.


This ruling is good for employers, as if there is an otherwise inadmissible recording that is made that disproves an employee’s claims, it can be admissible as evidence if meets the same scenario above. However, employers must be careful to use these recordings as they may be inadmissible and may not show the same thing that the employer believes in the court’s eyes. This being said, it is prudent to consult an attorney before utilizing a recording for any employment action or in legal action to avoid unwanted consequences.

 

If your business has any questions on this topic or any other matters, please do not hesitate to contact the attorneys at The Royal Law Firm at 413-586-2288.

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ALERT: EEOC ISSUES GUIDANCE FOR WEARABLE TECHNOLOGY

February 14, 2025
On February 12, 2025, the Equal Opportunity Employment Commission (“EEOC”) issued guidance to remind employers that employment discrimination laws apply to the collection and use of information from wearable technology, which includes smart watches and rings, environmental or proximity sensors, smart helmets or glasses, exoskeletons, GPS devices or any other device worn on the body embedded with sensors to track bodily movements, collect biometric information and/or track an employee’s location. Regarding the Americans with Disabilities Act (“ADA”), the EEOC reminds employers that information collected from wearable technology can constitute a prohibited medical examination or disability-related inquiry. These examinations and inquiries are prohibited under the ADA unless they are job-related and consistent with business necessity. For example, employers may be conducting a medical examination if information is collected about an employee’s physical or mental condition from the wearable technology. Further, employers may be engaging prohibited disability-related inquiry if they are to direct employees to provide information in connection with the use of wearable technology. If this data is collected by employers, the EEOC reminds employers that this data must be maintained in separate medical files and treated as confidential medical information. The EEOC also notes that employers may need to make exceptions or provide alternatives to wearable technology policies as a reasonable accommodation under Title VII (as a religious accommodation), the ADA (disability) or the Pregnant Workers Fairness Act (pregnancy, childbirth and related medical conditions), even if the employer complies with the ADA’s limitations. Further, the EEOC informs employers that the improper use of information collected from wearable technology could result in unlawful discrimination. For example, an employer cannot use information collected from wearable technology to infer that an employee is pregnant and terminate the employee and/or place the employee on unpaid leave. As way of further example, tracking an employee who takes a parent to a dialysis center and then inquiring as to the purpose of the visit would be a discriminatory practice that elicits genetic information about the employee’s family medical history. Employers should be aware of the limitations of the collection of data with wearable technology in light of the EEOC’s guidance and must review policies on wearable technologies to ensure compliance with the ADA and other anti-discrimination laws. If an employer has a concern or question related to the use or collection of data in relation to wearable devices, employers should seek counsel to avoid running afoul of the EEOC’s update guidance. If your business has any questions on this topic or any other matters, please do not hesitate to contact the attorneys at The Royal Law Firm at 413-586-2288.
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