Imagine that you are having a problem at work. Perhaps your boss is sexually harassing you, or saying that you aren’t eligible for promotion because you took maternity leave. Or, maybe you are being blamed for mistakes made by someone else on the team. Or, perhaps you are being bullied. You want to report the behavior to the human resources department, but you are concerned that your boss will simply deny it, and no one will believe you. So, you decide that the next time you have a conversation with your boss, you are going to record the discussion on your cell phone, which you always keep in your pocket, so you can prove exactly what was said. What a great idea, right? Wrong, at least if you live in California.
Under Federal law, it is legal to record a conversation as long as one-party gives consent to the recording. This is known as a “one-party” consent rule. But, there are twelve states — including California — in which it is illegal to record a conversation unless all parties to the conversation have consented to the recording. This is known as a “two-party” consent rule. And, in those states where there is a “two-party” consent rule, recording a conversation without getting the consent of all of the participants is also violation of criminal law.
In California, it is a misdemeanor to record a conversation without the consent of all parties to the conversation, which can lead to fines of up to $2,500 and/or imprisonment for up to a year. Typically, law enforcement officials are not interested in bringing a criminal action against someone who has illegally recorded a conversation. However, that doesn’t mean that illegally taping a conversation won’t cause problems. Moreover, in most cases a recording which has been made illegally won’t be admissible in court.
So, what’s an employee to do in such a situation? Ask if you can record the conversation. If everyone in the room agrees, you can go ahead and record. Or, take copious notes, either during the conversation, or as soon as you leave the room. (Just don’t do it on on your work computer, because anything on a electronic device may be the property of your employer . . . but that’s for another blog post).
