A common question that we get from clients is whether they can secretly record conversations or calls with co-workers, their boss, or HR. In California it can be illegal to secretly record conversations, whether they occur in person, over the phone, or through some other means such as video chat if the other participant(s) also live in a "two-party consent" state.
It all depends on whether the conversation that you are secretly recording is private or not--in legal terms, whether the other people involved in the conversation have a "reasonable expectation" the the conversation is confidential.
What is a Reasonable Expectation of Privacy?
While every situation is different, in general, people do not have a reasonable expectation of privacy if they are talking in a public place where others might overhear them or if they are told that the conversation is being recorded. On the other hand, co-workers probably have a reasonable expectation of confidentiality in conversations that occur in a private office or another location where other people cannot overhear them.
What if there is a Zoom call and the videorecording light is on? You can probably record this conversation. If someone from your employer is recording you, you probably can record the call on your phone.
What Happens If I Secretly Record a Conversation?
Secret recording of a private conversation in California is a misdemeanor crime. If you are convicted of secretly recording a private conversation you can be sentenced to up to a year in jail and fined up to $2,500 per recording. The person who was recorded can also sue you for $5,000 per recording or the damages that they suffered as a result of the recording.
Recordings that violate the law also may be inadmissible in your case, meaning you may not be able to introduce them to support your claims. By recording your boss, you are putting yourself at legal risk with no guarantee it will help you in litigation.
What Should I Do If I Want to Record at Work?
If you are experiencing harassment, discrimination, or other illegal conduct and you want to record your conversations you should talk to our experienced employment attorneys. We can help you gather the evidence that you need to support your claims without breaking the law.