Audio Recordings in the Workplace

Most of us carry a cellphone to work which has the capacity to make audio and video recordings. It can be tempting to record harassing comments or behavior, particularly if you think it will help prove discrimination or retaliation. Sometimes people attempt to record private apologies for sexual harassment in the workplace. Before recording a conversation, it is important to consider California’s privacy laws. Recording someone without their knowledge and consent can create legal problems for an employment or personal injury lawsuit in California.

California Penal Code section 632 governs recordings in and out of the workplace. Section 632 states a person can be charged with a misdemeanor or a felony if they record another person without consent in an area where a party has a reasonable expectation of privacy. The crime can be punished by a fine, imprisonment, or both. A person guilty of a 632 violation can also be sued in civil court. An illegal recording cannot be used as evidence in court. An illegal recording can be used as a basis to “counter-sue” a plaintiff who has a legitimate discrimination or retaliation lawsuit. Consider contacting an employment and personal injury law attorney at Spencer Young Law before you record someone discussing workplace harassment.

Example 1: Sophie works at a restaurant in Berkeley. Her boss, Sam, makes rude comments about her race regularly. Sophie wants evidence of race discrimination and harassment. One night, she starts an audio recording on her cell phone in her purse before approaching Sam in his office. The two of them are alone. Sam makes a racist comment and Sophie’s phone records it. Sophie’s recording likely cannot be used as evidence. Recording Sam without his consent in a private place could lead to a 632 violation. She could be counter sued if she files a discrimination lawsuit.

Example 2: On her day off, Sophie is at a public park where she goes with a small recording device to make recordings for a music project. She has a sign next to her that says, “Recording in Progress”. Sam walks by and makes a joke about how Sophie makes less in tips at the restaurant because she is African American. Sophie catches Sam’s comments on her recording device. This recording is legal because Sam was talking to her in a public space and had notice of the recording. Sam had no reasonable expectation of privacy. Sophie can probably use this recording as evidence of race discrimination and harassment.

It can be very hurtful and frustrating when we encounter discrimination and harassment at work. It’s important to be mindful of Penal Code 632 when attempting to fight it. There are often other ways to prove workplace discrimination without using recording devices. If you believe there is illegal activity happening at your workplace, and you want help determining the best way to address it, call Spencer Young Law for a free consultation. We are here to help.