In a closely watched case, Ayeprel v. Phules, the Supreme Judicial Court of Massachusetts formally recognized that confidential communications between so-called “work spouses” may be privileged. The 5-4 decision makes Massachusetts the first state in the country to adopt such a privilege.
The genesis of this ruling dates back to 2008, when Marcus Ayeprel was accused through an anonymous posting on his company’s intranet site of having embezzled funds from the company’s March Madness office pool. Believing that his colleague, Judith Phules, was behind the allegations of embezzlement, Ayeprel sued Phules for defamation and intentional infliction of emotional distress. Because Ayeprel knew that Phules had a particularly close relationship with another co-worker, Sidney Finch, Ayeprel sought to depose Finch to uncover whether Phules had admitted to him her involvement in the intranet posting. While Finch admitted generally that he and Phules had discussed what appeared to be discrepancies in the March Madness pool proceeds, Finch refused to divulge the substance of his conversations with Phules. When pressed to justify his objection, Finch’s counsel said that the conversations were privileged because Finch and Phules were “work spouses who intended such communications to remain in confidence.”
Ayeprel moved to compel disclosure of the Phules-Finch conversations, and the Superior Court ordered Finch to reveal them at a second deposition. Before that deposition took place, however, Phules appealed, and the Supreme Judicial Court took the issue for its own direct appellate review. The SJC then reversed the ruling of the Superior Court based on the following reasoning:
Many employees share confidential information related to their jobs and/or work environment with a work-place confidant whom they trust never to repeat what is communicated between the two. Today, we not only acknowledge that such ‘work spouse’ relationships exist, but we also hold that confidential communications between work spouses are privileged from disclosure unless both agree to waive that privilege.
As the case ultimately makes clear, the work spouse privilege applies only to verbal communications:
Between two co-workers who have a purely platonic relationship;
Where the subject matter of the communication is work-related; and
If the co-workers who are parties to the communication have a history of exchanging confidential information about their jobs, their employer or working environment for a period of at least 6 months.
While Ayeprel involved work spouses of the opposite sex, the decision does not hinge on this fact, and experts agree that same-sex work spouses could invoke the new privilege as well.
So what can or should in-house counsel do in light of the formal recognition of the work spouse privilege? Some have suggested that companies should ask employees to formally declare who, if anyone, is their work spouse so that employers at least can know which communications might be privileged and avoid any risk of what has become known as “work spouse polygamy.” Others, such as civil rights advocates in my office, insist that any such mandate would violate the Massachusetts Constitution.
This much is for sure: work spouses are here to stay – at least, that is, until they get work divorces….