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In Ca. can a whistleblower tape record conversations

San Francisco, CA |

I'm in California, a government employee, and am a whistleblower on my managers who are engaged in fraudulent activity. They have learned that I am the whistleblower and have begun pulling me into meetings behind closed doors to harass and threaten me. Can I legally record one of these meetings?

I've been told by several attorneys there are exceptions when the whistleblower is being subjected to other illegal acts, but each opinion is a little different and no one can seem to cite statutory or case law supporting this. It seems there is some statutory protection under the EEOC, but that does not necessarily translate into state protection.

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Attorney answers 6

Best Answer
Posted

I agree with Mr. Pedersen and Ms. McCall. There are, however, a few exceptions to when you can record confidential conversations. If you are recording them to obtain evidence that you reasonably believe demonstrates extortion, kidnapping, bribery, any felony involving violence against the person, or harassing telephone calls, you may be entitled to secretly record the conversation.

Do not, however, make that call yourself. The odds are that what you think involves extortion, kidnapping, etc., actually wouldn't qualify, so make sure to talk to an attorney before contemplating doing this.

In any event, keeping a log or telling them about the recording, as Mr. Pedersen and Ms. McCall suggest, are both good options. Good luck!

Sincerely,
Craig T. Byrnes

Disclaimer: Please be aware that I am not offering legal advice, nor forming an attorney-client relationship with you. I am not representing you, nor doing anything to protect your legal rights. If you believe that you have suffered a legal wrong, take action before any statute or limitations expires, or your right to do so may be lost forever. Good luck in your legal matter.

Craig Trent Byrnes

Craig Trent Byrnes

Posted

By the way, the statute describing the exception is Ca. Labor Code §633.5.

Posted

Only with the consent of the propel who you are recording. In California it is against the law to secretly record the conversations of others without their consent.

You might benefit from consulting with an experienced employment law attorney and having them evaluate your case. The California Employment Lawyers Association maintains a list of employment law attorneys who represent employees against employers. Follow the link to: www.cela.org.

Posted

California Penal Code section 632 makes it a misdemeanor to audio record another in a conversation that they expect is confidential unless consent is given by that person. It is a crime and it also has other penalties. For instance, the person who is recorded can get a $5,000 civil penalty against you for every violation of the law. In addition, the statute makes inadmissible any recording made in violation of the law, except to prove it was made for purposes of enforcing the statute. In other words, you risk a money judgment AND you do not get to use the recording.

Do the next best thing. Keep a detailed journal of what is happening. As soon as the meetings are over, journal everything you can remember. Short of recording, that is your next best option.

Good luck to you.

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Posted

As the other responses indicate, no you can't record the conversations without consent. Keep detailed notes contemporaneous with the meetings. Also, their conduct sounds like it constitutes unlawful retaliation. You need to bring it to the attention of the agencies HR department, and you might want to consult with an employment law attorney if things continue... Best of luck to you...

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Posted

Please do not take this as legal advice, but this war story from my past cases might help you. Names and details radically changed to protect the attorney client privilege.

I know how frustrating is is to work for an agency breaking the law and yet having a difficult time proving the violations. You can not just let it go. However you do not want your career and life trampled on.

One a law enforcement officer came into my office years ago. The department had fired them over illegal conduct they engaged in with another officer. The department did not fire the other officer. Fire one, fire both for the same conduct. Right?

They came into my office with tons of evidence. Evidence that their supervisor, and other small time politicians, were cheating on their wives, that they protected family members selling drugs, misuse of public funds and other sordid allegations. None of the evidence had to do with the charges filed against them. I neither used or even looked at the evidence. Contrary to the popular belief, lawyers are not extortionists.

The story had a happy ending. I did not need to know any of the irrelevant illegal acts to resolve the case. The former law enforcement officer did have illegally tape record conversations or send any of their friends in with a wire to resolve the case.

Call an attorney skilled employment attorney knowledgeable concerning public employees before you start tape recording anything. It is a felony to illegally tape record conversations on certain government properties. Prisons are the first areas that come to mind. Illegal wiretapping concerns tape recording telephone calls. Then there always the Computer Fraud and Abuse Act for those government employees who exceed their authority in down loading information for a government computer.

There are right and wrong ways of handling a case like this. Call a lawyer.

Posted

As a veteran of public agency employment, I make this suggestion for your situation: when you are "pulled into" one of these meetings, bring your recording device out very visible and say "no objections to recording this, right?" And turn it on without waiting for a response. Meeting will end promptly. You will not be prosecuted. Rinse; repeat.

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A. Melissa Johnson

A. Melissa Johnson

Posted

Ms. McCall suggests a great way of dealing with the situation.

David Herman Hirsch

David Herman Hirsch

Posted

Yes, she makes an excellent point...

James Anthony Dal Bon

James Anthony Dal Bon

Posted

Ms. Mcall has given you a very practical way of dealing with the situation. However any action you take will have some ramifications. I have worked for the state of California. I have represented state employees. I have seen this sort of bullying all too many times. Depending on the agency involved word about "problem" employees gets around. Management starts putting paper in your personnel file. Management starts building a case to fire you. Some employees get through it. Some even end up heroes. Others are slowly forced from their jobs. The paper in their personnel file builds over the years until they look so incompetent by the time they are fired, no employment attorney will take their case. Your union or employee association is your first line of defense. If you belong to one. At the very least, speak to your union or employee association representative. What are they doing to protect you? Each state agency is different. Once again if you work in a prison you can be found to violate state regulations for even bringing a tape recorder to work. Talk to your employee rep and talk to an attorney.

Christine C McCall

Christine C McCall

Posted

I can't dispute the scenario that you describe; it's all too-frequent a situation. But there is nothing about it that is unique to public sector employment, except that public agency employment usually requires the slow pace of process. In private sector employment the axe can fall at any moment.

James Anthony Dal Bon

James Anthony Dal Bon

Posted

You are right. I have seen the public sector take years to terminate someone. It is like watching a train wreck in slow motion.