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Legality of Recordings in the Employment Workspace

This guide examines the legality of secret employee recordings in the workplace in an effort to proved employer discrimination and retaliation.

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3 Cal. Penal Code §632(a).
4 Flanagan v. Flanagan, 27 Cal. 4th 769, 776 (2002) (The Court of Appeal had held that the $5,000.00 civil penalty was available for each violation. The Supreme Court, however, required the Court of Appeal on remand to separately consider the 27 telephone calls to determine which of the 27 would support a damage award according to the clarified standard.)
5 Cal. Penal Code §632(c).
6 Allen v. Sully-Miller Contracting Co., 28 Cal.4th 222, 227 (2002) (citations omitted).
7 See Klein v. United States, 50 Cal.4th 68, 78 (2010); Dyna-Med, Inc. v. Fair Employment & Housing Comm., 43 Cal.3d 1379, 1386-87 (1987); Brown v. Superior Court, 37 Cal.3d 477, 484 (1984).
8 Frio v. Superior Court, 203 Cal. App. 3d 1480, 1488 (1988).
9 Penal Code §632(c).
10 Id.
11 Sanders v. American Broadcasting Companies, 20 Cal. 4th 907, 918-19 (1999).
12 Walker v. Darby, 911 F.2d 1573 (11th Cir. 1990).
13 Kight v. CashCall, Inc., 200 Cal. App. 4th 1377, 1396 (2011).
14 Franchini v. Argonne National Laboratory, ARB Case No. 13-081 (Sep. 28, 2015).
15 See Heller v. Champion Int’l Corp., 891 F.2d 432, 436-437 (2nd Cir. 1989).
16 See Grant v. Hazelett Strip Casting, 880 F.2d
1564, 1569-72 (2d Cir. 1989) (employee’s gathering and keeping evidence regarding discrimination claim despite employer’s order to the contrary is protected activity); see also Sanders v. Madison Square Garden, L.P. , 525 F.Supp.2d 364 (S.D.N.Y. 2007); EEOC v. Kallirs, Phillips, Ross, Inc., 401 F. Supp. 66, 74 (D. N.Y. 1975).
17 O’Day v. McDonnell Douglas Helicopter Co., 79 F.3d 756, 763 (9th Cir. 1996).

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