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Is Audio Surveillance Legal in California Workplaces?

Posted by Eric Kingsley | Jun 11, 2023 | 0 Comments

Recording audio in California workplaces generally can be done only with consent from both parties. This law applies to routine recordings such as those that might occur during training sessions, and also private conversations between employees and their supervisors or co-workers. Some employers have their own internal policies with regard to audio recordings in addition to state and federal policies on the matter.

While employers may have legitimate reasons to record audio of employees in the workplace, workers also have their right to privacy. Controversies or disputes over workplace audio recording depend on the facts and circumstances of each case. When it comes to the most common scenarios, federal and state laws are clear. The state of California has added protections for employees.

California is a Two-Party State

What this means is that you cannot record a confidential conversation without the consent of all who are involved. The consent must be obtained before the conversation begins. Under California Penal Code Section 632, when a confidential conversation is recorded without that person's knowledge or permission, the person doing the recording could be charged with criminal eavesdropping. Therefore, employers cannot record audio conversations without the consent of employees.

It is important to note that the only way an employer can legally record audio in the workplace is with the knowledge and consent of all parties who are being recorded. The Electronic Communications Privacy Act (ECPA) makes it legal to listen in on calls concerning business. However, it is illegal to record or listen in on private conversations.

If you feel that your employer has violated your rights, contact a knowledgeable employment attorney in LA, California.

Employers Cannot Record Union Meetings or Activities

The federal National Labor Relations Act forbids employers from photographing or recording audio or video of employees who are engaged in union or other similar protected activities. Under federal law, it is illegal to record audio or video of union meetings or other types of union activities.

When Are Employers Allowed to Record Employees at Work?

Under California labor law, employers have the right to record audio of their employees at work when their business interest outweighs the workers' right to privacy. So, it is legal for an employer to record employees at work in common areas or other public locations unless an employee can prove that they had a reasonable expectation of privacy in a public or common area.

In other words, employers are allowed to install audio recording equipment in workplaces if it applies to the business's services. However, this can only be done in areas where employees work and not where they take breaks such as break rooms, cafeterias, restrooms and locker rooms. California Labor Code section 435: "No employer may cause an audio or video recording to be made of an employee in a restroom, locker room, or room designated by an employer for changing clothes, unless authorized by court order." There are also limitations on audio recording and tracking employees outside the workplace.

Is it Legal to Record Phone Calls?

According to California Penal Code Section 632, in cases where employers are monitoring employee phone calls for quality control, phone calls taking place within California still cannot be recorded unless all participants have been informed and have consented to the recording. This can be done with a beep at the beginning of the call, which is fairly common in customer service calls. Employers are still prohibited from monitoring personal employee calls unless an employee is making personal calls from business phones in violation of company policy.

When Can Employees Sue?

If an employee believes their privacy has been violated by their employer's surveillance activities, they may be able to recover damages in court. Typically, several factors are considered while adjudicating such cases including:

  • What was recorded
  • Whether the recording caused the employee harm
  • If the employee's privacy was violated
  • If the business interest outweighs the employee's privacy interest
  • Whether the case involved confidential information or large amounts of money

If the employee's reasonable expectation of privacy was violated by the employer's surveillance activity, and if such invasion caused the employee harm, they may sue their employer. Some of the damages employees seek in these cases may include:

  • Lost wages
  • Damages for emotional distress
  • Compensation for mental anguish
  • Punitive damages in cases where the employer acted recklessly

What Can Employees Do?

Employees have a right to decline being recorded without giving any further explanation. You can ask your employer to stop recording even when you have given consent, but if you do not wish to be recoded any more. You can also accept to be recorded when the conversation is held in a public space. Sometimes, you may be in a public space and still have a reasonable expectation of privacy. In all situations, getting consent for recording audio is the best way to ensure that laws are not being violated.

How Our Attorneys Can Help

Navigating these types of issues in the workplace can be challenging and intimidating for employees. If you believe that your employer conducted illegal audio surveillance in the workplace, our experienced Los Angeles employment attorneys at Kingsley & Kingsley Lawyers can help you better understand your legal rights and options as an employee in California. The law in this area can be extremely complicated. Our knowledgeable lawyers can help you comprehend these laws and help hold at-fault employers liable.

About the Author

Eric Kingsley

Eric B. Kingsley is a 2023 "Best In Law" Award winner and has litigated over 150 class actions. He is also an AV peer rated attorney and a prolific speaker at various seminars on employment law.


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