(dissenting in part). I respectfully dissent from part 2 of the majority opinion. General Laws c. 149, § 19B(2), as appearing in St. 1985, c. 587, § 1, provides in relevant part that “[i]t shall be unlawful for any employer or his agent, with respect to any of his employees ... to subject such person to, or request such person to take a lie detector test ... or to discharge . . . such person for the assertion of rights arising hereunder.” There follows an exception contained in the second sentence of the statute which permits law enforcement agencies to administer such tests “as may be otherwise permitted in criminal investigations.” I dissent because I conclude that in these circumstances the exception was not applicable.
“[A]n exception from the coverage of a statute is ordinarily to be construed narrowly so as to prevent the purposes of the statute from being rendered ineffective.” Singer Friedlander Corp. v. State Lottery Commn., 423 Mass. 562, 565 (1996), quoting from Martin v. Rent Control Bd. of Cambridge, 19 Mass. App. Ct. 745, 747 (1985). To put it colloquially, an exception not construed narrowly “would swallow the rule.” Brum v. Dartmouth, 428 Mass. 684, 693 (1999). The majority’s interpretation of G. L. c. 149, § 19B(2), allows just that. Under their interpretation, any time a crime is reported at a place of business, any one of that business’s employees could be fired for refusing to take a lie detector test, without anything more. I do not believe the Legislature intended this statute to protect so little.
The majority likens the situation here to Baker v. Lawrence, 379 Mass. 322 (1979), a case in which the Supreme Judicial *584Court held that an investigation, conducted by the administrative head of a municipal police department into a theft at a store allegedly committed by police officers, could include a demand that the officers take a lie detector test. Justice Kaplan explained in Baker that the exception applies to circumstances “where a law enforcement agency is conducting an investigation into a crime alleged to have been committed by a person in connection with the duties of his employment, and the agency is permitted, i.e., not forbidden, to administer a polygraph to that employee.” Id. at 327.
Even so, a grant of adequate immunity was necessary for the employer in Baker, a government agency, to lawfully compel its employees to take a lie detector test.1 While the right against self-incrimination is not necessarily raised in circumstances where an employee is compelled by a private employer to testify, all individuals are protected by the United States Constitution and the Massachusetts Declaration of Rights against self-incrimination in any instance in which testimony is compelled by the government. See Commonwealth v. McGrail, 419 Mass. 774, 777 (1995); Commonwealth v. Dormady, 423 Mass. 190, 193-194 (1996). If the plaintiff was coerced, even by Kelley, to take the lie detector test, then absent an adequate grant of immunity its administration by the police was not “otherwise permitted.” Ruling differently allows a law enforcement officer to use this statute to compel testimony in violation of an individual’s constitutional rights, simply by involving that individual’s employer. This is precisely what appears to have happened here.
The defendants argue that no constitutional rights are implicated because the plaintiff took the test voluntarily, not as a result of police pressure. “In determining whether a statement was made voluntarily, in compliance with due process of law, we examine ... the totality of the circumstances surrounding the making of the statement,” including “all of the relevant *585circumstances surrounding the interrogation and the individual characteristics and conduct of the defendant.” Commonwealth v. Selby, 420 Mass. 656, 662-663 (1995). Commonwealth v. James, 427 Mass. 312, 315 (1998). The plaintiff furnished testimony at his deposition indicating threats and pressure exerted by Minichielh and Kelley to obtain his consent to the test. The burden is on the defendants, therefore, to demonstrate that there is no genuine issue of material fact and that as a matter of law the plaintiff freely consented to take the test. For his part, Minichielli points out that the plaintiff testified that Minichielli only suggested that he take the test, that he never told him that he had no choice. Consequently, there was a genuine issue of material fact as to whether the plaintiff’s cooperation was compelled. As there is no question that the plaintiff was not offered adequate immunity from criminal prosecution,2 viewing the materials in a light most favorable to the plaintiff, see Blare v. Husky Injection Molding Sys. Boston, Inc., 419 Mass. 437, 438 (1995), a fact finder could determine that the administration of the test was proscribed by the statute and that the plaintiff had a right to refuse. I would permit both of the plaintiff’s claims to proceed to trial.
In Baker, the court found that “use immunity” offered adequate protection of the officers’ right against self-incrimination under the Fifth Amendment to the United States Constitution, but did address the issue under art. 12 of the Massachusetts Declaration of Rights. See id. at 331 & n.14. However, “the type of immunity that provides the requisite degree of protection for art. 12 purposes is the so-called transactional immunity, which provides a greater protection than the ‘use and derivative use immunity’ required by the Fifth Amendment." Commonwealth v. Burgess, 426 Mass. 206, 218 (1997) (citation omitted).
See Commonwealth vs. Dalrymple, 428 Mass. 1014, 1016 (1998) (G. L. c. 233, §§ 20C-20I, “ ‘covers the entire subject of immunity’ for witnesses in the specified proceedings”). See also Baglioni v. Chief of Police of Salem, 421 Mass. 229 (1995); Commonwealth v. Dormady, 423 Mass. 190 (1996).