Do Employees Have The Right To Secretly Record Harassment And Discrimination In The Workplace

California is a Two-Party Consent State

When employees face unlawful conduct in the workplace, such as sexual harassment and discrimination, gathering evidence can be challenging. To document such incidents, employees sometimes use recording devices like their cell phones to secretly record the harassing or discriminatory conduct. Naturally, employees want to ensure that they have some sort of evidence in case they ever need it in the future. However, due to California’s “two-party consent” laws and workplace policies against recording, these secret recordings may be inadmissible evidence in court. In fact, secret recordings may even lead to civil and criminal penalties for the employee.   

In California, recording someone without their consent can lead to legal issues, even if it captures workplace discrimination or workplace harassment. As a “two-party consent” state, California requires that all parties in a confidential conversation must consent to any recording. According to California Penal Code § 632, using an electronic device to record confidential communication without consent is illegal. Violators can face misdemeanor or felony charges and fines up to $2,500. Furthermore, recordings made in violation of this law are inadmissible in any judicial, administrative, or legislative proceedings

To prove a violation of section 632, a prosecutor must show that the defendant  intentionally recorded a confidential communication  using an electronic device  without the consent of all parties

Not All Recordings Are Confidential Communications

While section 632 prohibits the covert recording of confidential communications without consent, it’s worth noting that not all video recordings qualify as confidential communications and thus may not violate section 632. In the 2000 case of People v. Drennan, the Court of Appeal clarified that section 632 specifically protects sound-based or symbol-based communications, excluding unconsented videotaping. 

In People v. Drennan, a school superintendent installed a camera above a school principal’s desk, capturing timed still photographs without the principal’s knowledge. The camera did not capture any sound recording but ultimately led to the superintendent’s conviction for violating section 632. However, the Court of Appeal overturned this decision. The court focused on the fact that the camera did not record audio and thus could not capture any conversation. Delving into the legislative history of section 632, the court reasoned that the statute primarily sought to safeguard an individual’s thoughts, ideas, or knowledge; thus, some form of communication needed to be captured for the statute to be violated.

Another crucial consideration is whether the recording captured communication intended to be confidential among the parties present. Confidential communication occurs when one party reasonably expects that the communication is not being overheard or recorded. While section 632 prohibits the recording of confidential communication without the consent of all parties involved, it does not restrict recording communication that takes place in open spaces.

Workplaces have areas that can be classified as either private or public. For instance, locked offices, restrooms, or restricted-access areas are typically considered private spaces, whereas open workspaces and common lunch areas are considered public spaces. However, determining whether a work area is a private or public space requires a thorough examination of the context and assessing whether the parties had a reasonable expectation of privacy.

Certain Recordings Can Be Used as Evidence

Lastly, workplace policies on video and audio recording may restrict employees from documenting their interactions. However, according to the National Labor Relations Board (NLRB), certain recordings made by employees can serve as evidence, even if they were made secretly and violate the employer’s policies. In a 2023 administrative ruling, the NLRB affirmed employees’ right to secretly record workplace conversations when engaging in protected activities, even if it contradicts state “two-party consent” laws.  The NLRB has identified documenting unsafe working conditions and preserving evidence of labor law violations as protected activity.

In conclusion, video and audio recording evidence of harassment or discrimination may be introduced as evidence in some cases depending on how the recording was captured and whether the recording reveals confidential communications.

The employment attorneys at Ricardo Lopez Law can help you differentiate between prohibited recordings that will be inadmissible in court and recordings that can serve as evidence. We help employees across California, including Los Angeles County, Orange County, and San Diego County.

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