According to the Pew Research Center, about 58% of Americans own a smartphone, and 90% own a cellphone. Nearly every portable electronic device available to employees contains sophisticated video and audio recording capability. Anyone can become a mass distributor of recorded information on platforms such as Facebook, Instagram, Twitter and Vine. Many of us record every-day events that would simply evaporate into history without cameras on our phones and the ability to mass-publish via the internet. So what does all this mean for the workplace?
Those same employees who watch “viral videos” are often making their own recordings, whether for fun, self-preservation, or even to capture their 15 minutes of fame. A federal jury in a recent case, Johnson v. Strive East Harlem Employment Group, et al. , awarded a New York employee $280,000 in damages based on a surreptitious recording in which the employee captured her supervisor calling her an inappropriate racial term.
In Johnson, the recording was legal because New York law permits surreptitious recordings. But that is not the case in California. Certain California privacy and electronic eavesdropping laws may come into play when an employee records workplace interactions.
Secretly Recording the Workplace in California
California Penal Code section 632 prohibits electronic eavesdropping on “confidential communications” unless all parties to that communication consent. Violation of the law is a misdemeanor, and punishable by a fine of up to $2,500. A recording made in violation of the statute typically is also inadmissible in court. Therefore, Johnson’s recording may not have been permitted as evidence against her employer if she had been employed in California.
In addition to the protections provided by section 632, California employees have a common law right to privacy based on the state constitution. Based on the constitutional protections, the California Supreme Court has recognized that secret eavesdropping may constitute a common law intrusion into the employee’s private affairs.
One key issue under both the Penal Code and common law is that the recorded communication must have been “confidential.” A “confidential communication” occurs when a party had an objectively reasonable expectation that the conversation was not being overheard or recorded.
Communication in the workplace may be confidential even in circumstances that do not involve absolute seclusion. For example, the California Supreme Court held in Sanders v. ABC, a case involving an undercover investigation by a news program, that employees could sue ABC under both Penal Code section 632 and the common law: “In an office or other workplace to which the general public does not have unfettered access, employees may enjoy a limited, but legitimate, expectation that their conversations and other interactions will not be secretly videotaped by undercover television reporters, even though those conversations may not have been completely private from the participants’ coworkers . . . .”
The offensiveness of the intrusion is another important issue. The California Supreme Court confronted this issue in Hernandez v. Hillsides, Inc. There, an employer had evidence that an unknown person was viewing pornography on computers after-hours. The employer set-up a hidden video camera in an office two employees shared and made very limited recordings of the employees’ workspace. The employer did not actually videotape the two employees.
The Court held that while the employees had a reasonable expectation of privacy in their shared workspace, the intrusion was not “highly offensive.” Despite the employer-favorable outcome, this case is a cautionary tale. The video recording was very limited in time and location, no actual footage of the employees was captured, and the business purpose was to catch an unauthorized computer user. The outcome might have been different if the employer had even accidentally videotaped one of his employees talking to her doctor about a medical condition, for instance.
Publishing Private and Confidential Communications
Posting recorded communications on social media may implicate additional legal issues, such as the “publication of private facts.” This variant of the invasion of privacy claim requires public disclosure of a private fact that would be offensive to a reasonable person, and not of legitimate public concern. For example, a co-worker’s posting of another employee’s embarrassing revelation about a communicable sexual disease could result in liability for the co-worker.
Guidelines for Employers
In this day and age, employers should assume employees are using their smart phones to record conversations, take pictures, etc. in the workplace. Of course, employers should be concerned about more than the surreptitious recording of a manager’s perceived inappropriate behavior. An employer may be subject to claims filed by one co-worker based on another co-worker’s recording or “publication” of confidential information. An employee may publish confidential information about an organization’s products that injure the employer’s competitiveness. An employee may seek to memorialize a meeting concerning disciplinary action or a performance appraisal. Some may also record unflattering or intrusive videos of another employee’s physical attributes.
Not all recording is secret, either. Some employees may seek to openly record the workplace, including meetings, the boss’s communications, etc. These recordings may not implicate legal issues such as a violation of the Penal Code or invasion of privacy, because all parties understand there is no confidentiality to the communication. Yet, management may wish to prohibit these recordings as well.
Employers must be prepared to address the prevalence of unauthorized recording in the workplace. They should develop policies that address the use of recording devices at work, including open and surreptitious recording, audio and video recording, and the use of the recorded information in the workplace. Employers may also wish to regulate employees’ use of smart phone technology at desks or in meetings.
Supervisors and managers should be trained to verify whether sensitive communications are being recorded and, as a best practice, simply assume they are being recorded. That assumption may keep them in line when participating in difficult conversations with others. Of course, announcing that a particular communication is intended to be confidential goes a long way towards establishing the protections of California’s strong privacy laws.