Massachusetts Business Attorney · Employment Law
Employers have good reasons to watch the workplace, from protecting data to keeping people safe. Massachusetts does not ban workplace monitoring. But it does have a privacy statute that reaches private employers, one of the strictest recording laws in the country, an outright ban on lie detector tests and detailed rules for criminal background checks. Getting any of these wrong can turn an ordinary management decision into a lawsuit.
The Massachusetts privacy statute
The starting point is G.L. c. 214, § 1B, which gives every person “a right against unreasonable, substantial or serious interference with his privacy,” enforceable in the Superior Court with damages. It is a statute, not a constitutional provision, and the Supreme Judicial Court has applied it to private employers.
Courts balance the employer’s legitimate business interest against how seriously its conduct intrudes on the employee’s privacy, so the same practice can be lawful for one job and unlawful for another. Written policies, advance notice and a clear business reason matter.
Monitoring company email, computers and networks
Massachusetts has no statute requiring notice before an employer monitors company email, computers or internet use. Some states do, including New York (Civil Rights Law § 52-c) and Connecticut (Gen. Stat. § 31-48d). If you have employees in those states, check their rules.
Notice is still your best protection. A privacy claim is much harder to win when employees have signed a written policy that identifies the company systems covered (email, networks, devices, messaging platforms and phones), states that they may be monitored, and tells employees they have no expectation of privacy in them. Apply the policy consistently.
Be more careful with employees’ personal accounts and devices. Logging into an employee’s personal email or social media account without permission can lead to claims under the privacy statute and the federal Stored Communications Act, which prohibits intentionally accessing stored electronic communications without authorization. Talk to counsel before you look.
Recording calls and conversations
This is where employers face criminal exposure. The Massachusetts wiretap statute, G.L. c. 272, § 99, prohibits secretly hearing or recording a wire or oral communication without prior authority from all parties. Federal law generally allows recording with one party’s consent (18 U.S.C. § 2511(2)(d)), but Massachusetts is stricter, and employers here must follow the state rule.
A willful interception is punishable by up to five years in state prison and a $10,000 fine. A person whose communications were intercepted can also sue for actual damages (at least $100 per day of violation or $1,000, whichever is higher), punitive damages and attorney’s fees. If you record calls, make sure everyone knows: employees through an acknowledged policy, callers through an announcement. Never secretly record a meeting or interview.
Video cameras
Section 99 covers wire and oral communications, so silent video of work areas is treated differently. A camera that also captures sound, however, can create a wiretap problem. And it is a crime to secretly photograph, videotape or electronically surveil a person who is nude or partially nude where that person would reasonably expect privacy (G.L. c. 272, § 105). Cameras do not belong in restrooms, locker rooms or changing areas.
Social media and off-duty conduct
Massachusetts has not enacted a law barring employers from asking for social media passwords. Bills have been filed in several sessions, most recently H.1893 in 2023–2024, but none has become law. There is also no general Massachusetts statute protecting private employees’ lawful off-duty conduct or political speech.
That does not mean anything goes. Demanding access to private accounts invites a privacy claim. Section 7 of the National Labor Relations Act protects employees’ right to engage in “concerted activities” for “mutual aid or protection” (29 U.S.C. § 157), so posts in which employees discuss pay or working conditions with each other can be protected, even in a non-union workplace. And discipline that tracks a protected characteristic, or follows closely after a complaint, invites a discrimination or retaliation claim.
Lie detector tests are prohibited
Under G.L. c. 149, § 19B, an employer may not subject an employee or applicant to a lie detector test, or ask one to take a test, inside or outside Massachusetts. The definition is broad: it covers a polygraph and any other device or written examination used or interpreted by an examiner to detect deception or assess honesty. Retaliation for asserting these rights is also unlawful.
Every application for employment in Massachusetts must contain this notice, in clearly legible print:
“It is unlawful in Massachusetts to require or administer a lie detector test as a condition of employment or continued employment. An employer who violates this law shall be subject to criminal penalties and civil liability.”
Violations carry criminal fines, and an employee can sue within three years for treble damages for lost wages and benefits (at least $500 per violation), plus costs and attorney’s fees. An employee’s waiver is not a defense. The federal Employee Polygraph Protection Act also restricts most private employers.
Drug and alcohol testing
Massachusetts has no drug-testing statute for private employers. Courts evaluate testing under the privacy statute, weighing the employer’s interest against the intrusion. Two 1994 Supreme Judicial Court decisions set the framework:
- Folmsbee v. Tech Tool Grinding & Supply, Inc., 417 Mass. 388 (1994). The SJC upheld an employer’s testing program, relying on the nature of the business, evidence of employee drug use and the procedural safeguards used to protect privacy.
- Webster v. Motorola, Inc., 418 Mass. 425 (1994). A random testing program was upheld for an account executive who drove a company-owned vehicle roughly 20,000 to 25,000 miles a year, but not for a technical editor whose job did not present the same risks.
The lesson: tie testing to the job. Reasonable-suspicion testing, and random testing in genuinely safety-sensitive positions, stand on firmer ground than blanket random testing. Use a written policy, advance notice and privacy protections during collection.
Marijuana
Recreational marijuana is legal in Massachusetts, but the adult-use law does not require an employer “to permit or accommodate” marijuana use in the workplace, and it preserves employers’ authority to enforce “workplace policies restricting the consumption of marijuana by employees” (G.L. c. 94G, § 2(e)). Medical marijuana is different. In Barbuto v. Advantage Sales & Marketing, LLC, 477 Mass. 456 (2017), the SJC held that a qualifying patient fired after a positive test could pursue a handicap discrimination claim, and that the employer had to engage in the interactive process before terminating her. The employer may still try to prove undue hardship. See our guide to disability accommodation in Massachusetts.
Criminal background checks (CORI)
Employers may obtain criminal offender record information (CORI) on current and prospective employees through the state’s iCORI system (G.L. c. 6, § 172). The process is governed by G.L. c. 6, §§ 167–178 and 803 CMR 2.00, and Chapter 151B limits what you can ask.
Employers covered by Chapter 151B (generally those with six or more employees) may not ask about (G.L. c. 151B, § 4(9) and (9½)):
- Criminal history on the initial written application, unless federal or state law disqualifies people with certain convictions from the position or bars you from employing them
- Arrests, detentions or cases that did not result in a conviction
- A first conviction for drunkenness, simple assault, speeding, minor traffic violations, affray or disturbance of the peace
- Misdemeanor convictions three or more years old (counting from conviction or release, whichever is later), unless the person has another conviction within the past three years
- Sealed or expunged records
And you must:
- Obtain a signed CORI Acknowledgment Form and verify identity, usually with government-issued photo ID, before requesting CORI (803 CMR 2.11)
- Give the applicant a copy of the criminal history record before questioning him or her about it (G.L. c. 6, § 171A)
- Before an adverse decision based on criminal history, notify the person, provide the record and its source, identify the information you are relying on, provide your CORI policy if you have one and allow the person to dispute it (803 CMR 2.20)
- Maintain a written CORI policy if you run five or more background checks a year (G.L. c. 6, § 171A; 803 CMR 2.18)
If you use a background-check company, the federal Fair Credit Reporting Act also requires a stand-alone written disclosure and written authorization before you order the report, and a copy of the report and a summary of rights before adverse action.
Personnel records
Under G.L. c. 149, § 52C, you must notify an employee within 10 days of placing in the personnel record any information that has been or may be used to negatively affect the employee’s qualification for employment, promotion, transfer or additional compensation, or that could lead to discipline. On written request, you must allow review of the record, and provide a copy, within 5 business days. You need not allow more than two reviews a year, not counting reviews triggered by negative information. An employee who disagrees with something may add a written statement to the file. Employers with 20 or more employees must keep the complete record for three years after employment ends. The Attorney General enforces the statute, with fines of $500 to $2,500.
Protecting the employee data you collect
Under 201 CMR 17.00, anyone who owns or licenses “personal information” about a Massachusetts resident (a name combined with a Social Security number, driver’s license or state ID number, or financial account or card number) must maintain a written information security program. That includes employee data. The program must address, among other things, employee training, need-to-know access, cutting off terminated employees and overseeing vendors. Electronic records also require, to the extent technically feasible, encryption of personal information on laptops and portable devices and when sent over public networks or wirelessly (201 CMR 17.04).
Frequently Asked Questions
Do Massachusetts employers have to give notice before monitoring work email?
No Massachusetts statute requires it, unlike New York and Connecticut. But a written, acknowledged monitoring policy is still the best defense to a privacy claim under G.L. c. 214, § 1B, because it undercuts any expectation of privacy in company systems.
Can I record phone calls or meetings with employees?
Only if everyone knows. The Massachusetts wiretap statute, G.L. c. 272, § 99, prohibits secretly recording a wire or oral communication without prior authority from all parties. Violations can be criminal and can also lead to civil damages, punitive damages and attorney’s fees.
Can I ask employees for their social media passwords?
Massachusetts has not enacted a social media password law, but demanding access to private accounts invites a privacy claim and possible claims under the federal Stored Communications Act. Discipline over posts about pay or working conditions can also violate federal labor law.
Can a Massachusetts employer drug test employees?
There is no drug-testing statute. Courts weigh the employer’s interest against the employee’s privacy under G.L. c. 214, § 1B. Testing tied to safety-sensitive jobs or reasonable suspicion is on firmer ground. Employers may enforce policies restricting marijuana use (G.L. c. 94G, § 2(e)), but medical marijuana users may be entitled to an interactive process.
Can I ask about criminal records on a job application?
Not on the initial written application, unless a law disqualifies people with certain convictions from the job. Later in the process you may ask about convictions, but never about arrests without conviction, sealed or expunged records, certain first-offense minor misdemeanors, or most misdemeanors three or more years old.
Getting help with workplace privacy
Most privacy problems are avoidable with the right policies in place early. If you are setting up monitoring or revising your hiring process, learn more about our Massachusetts business law services or contact our office at 978-273-8337.
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About the Author
Richard Alan Gaudet, Esq. is an experienced administrative law practitioner in Massachusetts and an attorney at the Law Offices of Richard Alan Gaudet, LLC in Middleton. His practice includes business law and litigation, professional license defense, family law, and landlord representation. He earned his J.D. in 2020 and was admitted to the Massachusetts bar in January 2021 and to the U.S. District Court for the District of Massachusetts in 2021. He is a member of the Massachusetts Bar Association. Reach him at 978-273-8337 or rgaudet@gaudetlawoffice.com. Office: 35 Village Rd., Ste 100, Middleton, MA 01949.
ABOUT THIS ARTICLE
This article was prepared by a Massachusetts attorney and is provided solely for general informational and educational purposes directed to members of the general public. It does not constitute legal advice and does not create an attorney-client relationship. The law applicable to any particular situation depends on the specific facts and circumstances of that matter. Readers are encouraged to seek the advice of a licensed Massachusetts attorney before taking any action.
