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David I. Brody quoted in Massachusetts Lawyers Weekly on the state’s wiretap statute and the workplace

David I. Brody, partner in the firm’s Employment Department, was quoted in a Massachusetts Lawyers Weekly article, “Surreptitious recording in workplace admissible,” on January 25th, 2025. The article describes the case Simpson v. Boston Public Health Commission, in which the plaintiff sued her former employer for discrimination, and on two counts of violation of the wiretap statute. Its ruling denotes that Massachusetts’ wiretap statute does not prevent recordings, whether or not they are legally obtained, from being used as evidence in civil proceedings.

From the article: 

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.

Click here to read the full article from Massachusetts Lawyers Weekly (subscriber-only content).