Introduction to Workplace Recording Laws
Understanding California Recording Laws in the Workplace
When it comes to workplace dynamics, it is important for employers and employees alike to understand their rights regarding recording devices and the information captured by those recording devices. In a world where technology is being adopted at an exponential rate, employers and employees are finding themselves without a clear understanding of what their rights and obligations are as they relate to recording devices and the capture of information. In this article, we are going to discuss the California context and what that means for California employers in particular. This is important for employers, as the burden is predominately on the employer to make reasonable efforts to determine if a recording device (sometimes called a "wiretap") is being utilized within their premises, and to take action if needed. California’s recording law falls under the Penal Code § 632(a), which deals with intentional interception of wire, electronic or oral communications. Generally speaking, this section makes it illegal for a "person" to "intentionally and without the consent of all parties to a confidential communication, and intending thereby to enable anyone to hear or understand the communication , use an electronic amplifying or recording device to eavesdrop upon or record the confidential communication whether the conversation is carried on in person or by means of a telegraph, telephone, teletypewriter, or other device. . ." The definition of a "person" includes both individuals and entities, and the definition of confidential communications is restricted to "communications carried on in circumstances in which the parties adopt, or the circumstances reasonably indicate, that such communications shall not be overheard or recorded" so as to "preserve its privacy." California goes on to further emphasize the burden put on employers in the civil context, as not only can an employer be found liable for violation of Penal Code § 632(a), but any wiretap of any other electronic device, such as a video camera with a sound recording feature, could fall under the California Invasion of Privacy Act (CIPA). An employer could be civilly liable for $5,000 per incident, plus attorney’s fees and costs of suit. Warnings to employees are generally strongly urged, as it is important for the employer to affirmatively show that employees were aware of the prohibition against recording devices without permission. In subsequent sections, we will discuss how California courts have outlined how to apply this law, its nuances, and how it interacts with California’s recording laws found elsewhere in the Penal Code.
California’s Two-Party Consent Statute
California has a two-party consent law. Under Penal Code Section 632 (e), "all parties to a confidential communication consent to the recording thereof."
The Court of Appeal in the Matter of Kelsey S. v. Marin County Superior Court, held the following: In California, the state provides for increased privacy protections for any communication of a party in a private place in a manner that is likely to be overheard by a person outside the communication. California records and treats both individuals communicating with each other and telephone conversations as confidential communications that require the consent of both parties before being recorded, normally known as the "two-party consent" requirement…. …This 2-party consent right is expanded to other forms of communication as well since California law broadly defines a confidential communication as any communication that is "by telephone, including any cellular or cordless phone, by telex, by facsimile machine, or by any electronic device that transmits electronic data." (Penal Code, § 631, subd. (c).) For example, where an employee overhears a telephone conversation between two other employees from his cubical, this is not covered by the implied confidential communication as being out in the open like in the Kelsey case, but an employee would need to know that the other employee was secretly recording a conversation without the consent of the other party to be liable under the California privacy laws.
Impacts on Employers
California law places the burden of compliance on the employer. When an employee has a reasonable expectation of privacy in a workplace setting, it is up to the employer to prove that an exception to California’s law applies. Otherwise, the employer may be liable for damages to an employee that does not consent to the recording. The maximum civil damages under the statute are $5,000 or three times the amount of actual damages, whichever is higher. In addition, an employee may recover his or her attorneys’ fees, which can exceed six figures in a simple case. An employer may also face criminal liability, including a jail sentence of up to one year. Because the law imposes such onerous potential liabilities, every workplace should have policies that address the recording of conversations and communications. In addition, employer policies should clearly prohibit an employee from using any equipment (including personal cell phones) to record work-related interactions in any manner that violates the law. An employer may also want to take steps to limit the ability of employees from using their work computers, laptops, tablets, or phones to the extent those devices have the capacity to capture photographs, videos, audio recordings, or written communication.
Employee Rights and Responsibilities
Although California law permits the inadvertent recording of a non-confidential, casual conversation as an exception to the two-party consent requirement, employees are entitled to reasonable expectation that their communications are not being overheard, recorded, or intercepted in private settings like workplace restrooms, locker rooms, and shower facilities. Further, the addition of California Civil Code Section 630-631.7, which became effective January 1, 2016, makes clear that an employer cannot require an employee to consent to recording of his or her conversations as a condition of employment.
Employees also have the right to take legal action if they believe their privacy rights have been violated under Section 632.6. Section 632.6 makes it unlawful for a person "who is not a party to a confidential communication … intentionally to use an electronic amplifying or recording device to eavesdrop on the communication for a purpose related to a continuing course of criminal activity." If a person is found liable for violating Section 632.6, he or she is subject to a civil penalty of "not less than $1,000 and not more than $2,500 per violation, punitive damages, reasonable attorney’s fees, and costs of suit." In addition, the person may be prosecuted for a misdemeanor, which can result in a fine of up to $2,500 per violation and/or a year in jail.
The Role of Technology
Immersion in today’s technology creates a conundrum for workplace recording laws. With cell phones and tablets in nearly every pocket, multiple parties can easily record what is happening in the workplace. Although California recording laws have traditionally set the standard for who may generally record what is said to be a private conversation, recent advances in technology and case law interpreting California’s recording laws impact the contours of these legal protections.
A prominent example of a tech-related case interpreting California’s recording laws is Frlekin v. Apple, Inc., Case No. 3:13-cv-03415 JST (N.D. Cal.). In that case, the Katz plaintiff class was comprised of Apple, Inc. (Apple) employees who were required to undergo exit interviews upon termination. At least one Apple employee recorded the exit interviews. The exiting employees claimed their statutory privacy rights were violated because Apple’s policy did not notify them of the company’s right to monitor and record their conversations with human resources personnel during the exit interviews.
The district court denied Apple’s motion to decertify the class based on some evidence that the company attempted to prevent employees from recording exit interviews. For example, in 2011, Apple sent an email to its managers which stated: "Please take special care not to allow any recording devices (audio, visual, or still visual) into the room during the interview. If you notice a recording device in the room, ask the employee to leave immediately." The court also found Apple’s instructions to Human Resources to monitor cameras in the meeting rooms, to stay focused on the policies, and to make sure the meeting ends as quickly as possible constituted an opportunity to engage in monitoring and recording protected conversations . Apple’s appeal of this ruling remains pending.
Part of the challenge of defining the contours of recording privacy rights is newly emerging technologies that make traditional notions of a "protected" conversation obsolete. At this point, it is unclear what employers can do to protect themselves from workplace recording, particularly with regards to "consensual communications." For example, in Mendoza v. Nordstrom, Inc., 2016 Cal. LEXIS 1339 (Feb. 8, 2016) (cert. denied, 2016 Cal. LEXIS 9320 (Aug. 31, 2016)), the California Court of Appeal addressed the question of whether an employee has a reasonable expectation of privacy or confidentiality when using Nordstrom’s work-issued system. The Mendozas had sued Nordstrom for breach of privacy, alleging that the company improperly intercepted text messages the couple exchanged through the Nordstrom-issued Blackberries. The Mendozas further claimed they had a right to privacy in their communications through the store-issued Blackberries in which they exchanged sensitive information required to perform their jobs, such as S.S. employee numbers, financial data, and credit card receipts. Both the state trial court and then the California Court of Appeal went on to decide the case in favor of Nordstrom, finding that the Mendozas had no reasonable expectation of privacy or confidentiality in their communications while using the company-issued Blackberries.
Employers are no stranger to these dilemmas presented by ubiquitous advances in technology. Technology issues cannot be overlooked, particularly where the law has yet to catch up.
Penalties for Recording Without Consent
Violations of California recording laws may have steep legal and financial consequences for the offending individual and/or the company that employs them. If a civil lawsuit is filed, the violator may be required to pay "liquidated damages" to the victim that may range from $5,000 to $50,000. The statutory period for filing a civil suit is three years, since California Penal Code §637.2 (the telephone interception statute) has a three-year statute of limitations (Frisk v. Ball & Avard, Inc., 235 Cal.App.3d 1 (1991)).
Violations of California recording law can result in significant civil damages. In addition to the liquidated damages of $5,000 to $50,000 mentioned above, prevailing plaintiffs can recover damages for actual harm and civil penalties of $5,000 per violation. The ability to obtain punitive damages and attorney’s fees may also apply in given cases.
For example, in Frisk v. Ball & Avard, Inc. the jury awarded the plaintiff $1,610,000 in damages and attorney’s fees when the defendant intercepted wiressless "walkie-talkie" communications from a walk-in clinic’s medical assistant to the physician. In cases where the laws are violated as a way of inflicting punishment or malice, punitive damages may also be assessed.
Workplace Recording Best Practices
To ensure compliance with California recording laws in the workplace, both employers and employees should understand their rights, responsibilities, and the legal framework governing such matters. At a minimum, employees should be made aware of state laws and employer policies regarding the monitoring and/or recording of workplace communications. Practices to consider include the following: For Employers -Provide a hands-on training program within the first week of employment to educate new hires on company policies regarding reuse and/or publication of copyrighted material. -Create an updated office policy manual that includes the following; •Prohibited Use of Company Devices and Local Network. Employees should be advised if and when the use of company devices are permitted for personal use and under what conditions. Employees should be prohibited from using company equipment to access or post inappropriate material. •Recording. Employees should be advised if and when recording company communications is permitted . Employees should be advised that if they record in violation of company recording policies, then any employee complaints may not be protected by the National Labor Relations Act’s protection of employee complaints and communication related to working conditions. -Institute an "opt-in" approach to video surveillance by obtaining informed consent from employees to make clear to whom and what managers can direct those communications. -Ensure that any use of monitoring software, location tracking services, or other software tools complies with applicable California statutes and guidance. -Promptly investigate and respond to employee complaints concerning improper monitoring or recording to comply with California law and preempt potential Labor Code claims. For Employees -Read company policies and understand the terms and conditions of your employment. -Ask to see specific policies if you are unclear about your company’s policies on issues that involve potentially sensitive information. -Make sure to keep your employer up to date if you change your contact information-including email address and telephone number. Otherwise, use of personal devices could put your job at risk.