My employee wants to use her cell phone to privately record a conversation with another employee (without her knowledge). Can she do this?
The answer is definitely no. California is a “two party consent” state—in other words, it is a crime to record or eavesdrop on any confidential communication, including a private conversation or telephone call, without the consent of all parties to the conversation. See California Penal Code, Section 632. It applies to telephone conversations, but to casual conversations in person as well.
The definition of “person” (recording the conversation) includes an individual, business association, partnership, corporation, limited liability company, or other legal entity. Therefore, an employer can’t record conversations without permission either.
This law applies to all situations in which individuals are having a confidential communication. These are conversations in which the party being recorded has a reasonable expectation that no one else is listening or overhearing the conversation.
Even in conversations in offices where people are nearby, the party being recorded still might have the reasonable expectation that no one was listening in.
Although in today’s world it is very easy to record conversations using “smart phones,” employees should be cautioned that in California, recording the conversation without permission is forbidden. Violation of this code section can result in a fine of up to $2,500 or imprisonment in the county jail, or even time in a state prison.
The Labor Law Helpline is a service to California Chamber of Commerce preferred and executive members. For expert explanations of labor laws and Cal/OSHA regulations, not legal counsel for specific situations, call (800) 348-2262 or submit your question at www.hrcalifornia.com.