E-Blasts

Here at SLG we see all types of cases yet we are often surprised at the lengths employees and former employees will go to “get even” with their employers. We have been seeing a surge in cases in which the employee has, or claims to have, an audio recording of his employer or manager saying compromising things. These employees may be driven by a sense of being wronged by their employer, a sense of entitlement, or just plain greed and they are enabled by cheap and ubiquitous technology (smart phones). You need to know what your rights are with respect to confidential recordings and how to create an employment environment where such recordings do not take place.

California Penal Code §632 makes it unlawful for any person to eavesdrop upon or record a “confidential communication” without the consent of all parties. This provision, which is apparently not well known by many employees, carries a fine (not to exceed $2,500.00), and jail (not to exceed one year) for a first offense. Aside from the criminal penalties, Penal Code §632 provides:

Except as proof in an action or prosecution for violation of this section, no evidence obtained as a result of eavesdropping upon or recording a confidential communication in violation of this section shall be admissible in any judicial, administrative, legislative, or other proceeding.

Thus, if your employee records you in violation of §632 we can suppress this evidence should he try to use the recording against you in a later proceeding.

The issue that is often litigated in this context is whether the communication at issue was “confidential.” The key is that the expectation of privacy, or confidentiality, must be “reasonable” given all the circumstances. Thus, at one extreme it is likely that a conversation between you and your spouse in your office will be deemed “confidential” pursuant to Penal Code § 632. Conversely, at the other extreme, it is unlikely the statement you gave over the loud speaker system will be deemed “confidential.”

In addition to Penal Code §632, employers may have a cause of action in tort against intrusive employees.

In Sanders v. American Broadcasting Companies (1999) 20 Cal.4th 907, the Court rejected the argument that a reporter had not “intruded” on the plaintiff because the taped conversations occurred in the workplace and were arguably within the hearing distance of other employees.

The court noted that a claim for invasion of privacy has two elements:

Intrusion into a private place, conversation or matter; and
In a manner highly offensive to a reasonable person.

The court explained that “[t]he first element is not met when the plaintiff has merely been observed, or even photographed or recorded, in a public place. Rather the plaintiff must show the defendant penetrated some zone of physical or sensory privacy surrounding, or obtained unwanted access to data about, the plaintiff. The tort is proven only if the plaintiff had an objectively reasonable expectation of seclusion or solitude in the place, conversation or data source. Again, it is the expectation of privacy that is key."

COUNSEL TO MANAGEMENT: AN OUNCE OF PREVENTION. . .

While it may provide employers some comfort to know employees are legally prohibited from secretly recording their conversations, that the evidence may be suppressed in a judicial hearing, and that there are potential civil remedies against offenders, it is in your interest to prevent the recordings from occurring in the first place. First, we recommend having a policy barring any type of employee recording (whether secretly or not) without the consent of management. Having such a policy will allow you to take disciplinary action against offending employees even if the recording is not clearly illegal. Also, consider a policy banning cell phones in work areas. Such a policy would allow you to discipline employees who may or may not be recording you. Such policies must be carefully crafted and may impact an employee’s net “free from all duty” time for the purposes of authorized rest and meal periods. Also, cell phones do not only provide a means of easy recording, they are distractions that cause innumerable workplace injuries and lost production time: why suffer them in production areas during work time?

You will want to ensure any workplace prohibitions do not run afoul of the NLRA’s strictures concerning employee organizing. If you have any questions about anti-recording laws or work place policies please contact The Saqui Law Group.

 

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