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.
Penal Code Section 632The California Legislature enacted PC ?632 to ensure an individual's right to control the first-hand dissemination of a confidential communication.2 Section 632 prohibits an individual from overhearing a confidential communication without the consent of "all parties" to the conversation.3
As to the admissibility of such recordings, ?632 also provides that "[e]xcept as proof in an action or prosecution for violation of thissection, evidence obtained as a result of eavesdropping upon or recording a confidential communication in violation of this section is not admissible in any judicial, administrative, legislative, or other proceeding."
In Flanagan v. Flanagan, the California Supreme Court held that a confidential communication or conversation is one where "a party to that communication or conversation has an objectively reasonable expectation that the communication or conversation is not being overheard or recorded."4
In situations where an employee is talking to a group of employees in a common area workspace, consent may not be required from participants because the conversations are subject to being overheard and, therefore, are not confidential. To recover on a ?632 claim, the aggrieved party must prove that a reasonable expectation of privacy existed and that the communications were confidential.
Objective v. Subjective StandardThe test of confidentiality is "an objective one defined in terms of reasonableness."8 A communication
is not protected when "...the parties to the communication may reasonably expect that the communication may be overheard or recorded."9
Section 632 does not apply to communications which the parties expect may be overheard.10 California courts continue to determine that the subjective intent of the persons claiming that their privacy was violated under PC ?632 is, standing by itself, enough to establish a reasonable expectation of privacy. Situations exist in the workplace where a conversation is not entirely private and, in those scenarios, there may not be a reasonable expectation of privacy.
In Sanders v. American Broadcasting, the court suggested that "an employee might expect that workplace conversations may be overheard by other nearby employees, while not expecting that conversations will be electronically intercepted and overheard by a supervisor in another part of the building."11
Cases such as Walker v. Darby are frequently cited as support for a finding that mere subjective and conclusory "... affidavits attesting to the declarants' expectations their conversations were private and not being recorded," are sufficient to establish a reasonable expectation of privacy.12 This logic is circular as it relies upon evidence, not objective in nature, to establish a privacy violation in a manner which is not contemplated by PC ?632.
California courts continue to accept self-serving affidavits of employers and their employees stating they had an objectively reasonable expectation of confidentiality in connection with disputed secret recordings. However, the question of an objective expectation of confidentiality "is a question of fact that may depend on numerous specific factors..."13
Further, the conclusion that an expectation of privacy exists in places such as hallways and open conference rooms is illogical and a clear misapplication of the statute. In addition, the presence of multiple individuals during a conversation clearly is contrary to a private conversation which is not intended to be overheard. An objective consideration of the presence of multiple individuals, coupled with the public nature of the settings, dictate that no expectation of privacy would exist in these scenarios.
Employees' Protected ActivityWhen an employee records non- private conversations at the worksite to gather evidence of discrimination and retaliation, such conduct will often logically constitute protected activity under anti-discrimination and whistleblower laws and thus not constitute a violation of California PC ?632.
For example, the U.S. Department of Labor Administrative Review Board has held that the recording of workplace conversations can be protectedwhistleblower activity under the Energy Reorganization Act of 1974.14
The Second Circuit has held that making a secret recording to collect evidence of discrimination is a protected activity and that employers, as a matter of law, cannot take action against employees for making those recordings.15 The fact that an employer calls an activity a violation of duty does not remove the protection of Title VII for participation-protected activity.16
California courts and the Ninth Circuit are silent as to whether these recordings are considered protected activity in furtherance of evidence collection as to an employer's discriminatory or retaliatory conduct. Ninth Circuit courts apply the test from O'Day v. McDonnell Douglas Helicopter Co. to determine whether or not an employee's "opposition" conduct constitutes "protected activity."17 The test requires that courts first balance the protection of persons engaging reasonably in activities opposing discrimination and the interests of employers in the objective selection and control of personnel.18
The Ninth Circuit balancing test does not provide sufficient guidance as to whether or not recordings
by an employee at the worksite of discriminatory and retaliatory conduct is protected activity. While under the balancing test the protection of the employee opposing discrimination would much outweigh the employer's control of personnel, current case law does not provide sufficient guidance. An employee's opposition activity is protected only if it is "reasonable in view of the employer's interest in maintaining a harmonious and efficient operation."19
Given the foregoing, an employee who genuinely believes she is being subjected to discrimination, harassment, or retaliation by her employer will be engaged in protected activity in the event that she records her boss or co-workers in the open areas of the office where such conversations are likely to be overheard. As such, these recordings will not violate ?632 and will also likely be admissible to oppose summary judgment or at the time of trial.