Can I record conversations at work to prove I experienced discrimination or harassment?

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Can I record conversations at work to prove I experienced discrimination or harassment?

A classic problem in cases of discrimination or harassment at the workplace is the issue of “he said / she said.” If your boss or coworker said something inappropriate to you, they will certainly deny that it ever happened, which leaves an investigator with a dilemma over who to believe. There may not be any impartial witnesses, or they may be afraid to come forward for fear of retaliation. Now, the proliferation of smartphones has given everyone the capability to record conversations, but is it legal to do so?

Like so many legal issues, there is no simple answer. California Penal Code Section 632 makes it a misdemeanor to record a “confidential communication” without consent of all parties present and carries a fine of $2,500 per violation, up to $10,000 in total, and/or one year of imprisonment. However, there are a variety of ways to fight a charge that the recording was made illegally. For example, Section 632 excludes “a communication made in a public gathering or in any … proceeding open to the public, or in any other circumstance in which the parties to the communication may reasonably expect that the communication may be overheard or recorded.” So, the debate lies over whether the recorded communication was made in a circumstance where the parties had a reasonable expectation of privacy or not. Arguably, a closed-door meeting could be assumed to be private, whereas a discussion in an open area might not.  

Your employer may also have policies against making recordings in the workplace and disclosing that you have done so could lead to discipline or termination under those policies. However, if your employer also has policies allowing surveillance in the workplace, such as security cameras, or monitoring email or phone communications, it may be possible to argue that there is no reasonable expectation of privacy.

Whether the recording is ultimately admissible in a court action to prove discrimination or harassment occurred is also a complex issue. While Section 632 makes an illegal recording inadmissible in court, there are some exceptions. Courts have held that recordings can be used to “impeach” testimony—i.e., to prove someone is lying. If your boss makes a sexually harassing or racist remark, for example, and then lies on the witness stand, then a recording of him making that comment can potentially be used to “impeach” him.  

If you have experienced discrimination or harassment and need legal advice, it is in your best interests to speak to an employment lawyer as soon as possible. San Francisco employment law attorneys at the McCormack Law Firm can advise and help you determine what evidence you may need to support your claim.

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