Occasionally, potential clients call our office telling us they have recorded a conversation with their supervisor. In other situations folks ask us if it is okay to record a conversation they are going to have with their boss. Because this comes up quite a bit in the employment world I figure it would be a good idea to address this issue. Employment lawyers across California will all tell you the same thing – don’t secretly record anyone at work.
I made the below whiteboard video to help explain this area of law without any legal jargon. After you watch the entire video, make sure that you read the rest of this page. It is critically important!
An Employee Cannot Secretly Record A Conversation At Work
First of all, its a bloody crime. California Penal Code § 632(a). Secondly, you probably won’t be allowed to use it as a part of your case anyway. California Penal Code § 632(d).
In a majority of states, an employee can record a conversation in the workplace if that employee is taking part in the conversation. However, California does not follow the majority rule. In California and a handful of other states, an employee generally cannot record a conversation in the workplace unless everyone involved in that conversation consents or knows that the conversation will be recorded. This is because under the California Penal Code, recording a conversation is punishable by fine or prison time. While penalty is rarely enforced, you should still avoid recording your boss because you don’t want him/her to threaten you when they find out about the recording.
More importantly, even if it was legal to record your boss, in a civil case, you would not be able to use a secret recording as evidence in court. The law prohibits it except in extremely rare circumstances. Therefore, even if you get your boss to admit on tape that he broke the law, you would probably be prohibited from admitting it as evidence to show the jury.
Are There Exceptions to the Recording Law?
There are exceptions to this general rule. If the employee who is doing the recording is having a conversation in a public setting, such as a lobby with people in it, stairwell, or the breakroom where there is people then recordings these conversations in public settings is usually legal. This is because there is no expectation of privacy in a public setting. It can be expected that the conversation in the public setting can be overheard because there is a lot of people surrounding the conversation.
If you think your employer is doing something illegal or discriminating against you or another co-worker, rather than recording a secret conversation to use as evidence, contact an employment lawyer immediately to discuss your options in the workplace.