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January 24, 2011 6:04 AM   Subscribe

Is it legal to secretly videotape and/or record the conversations of employees in California?

My wife works in a small, independent, boutique retail store in California. Total number of employees is about eight. They have reason to believe that their conversations are being recorded - or at least listened to - by the boss/owner, at her home office. Less proof of, but still suspicion of, hidden video cameras as well. Would this be legal? There has been no forewarning of this possibility by the boss/owner. Thanks in advance.
posted by joyride to Work & Money (4 answers total) 3 users marked this as a favorite
You need to talk with an attorney to learn about the specifics of your situation. I am not a lawyer, but my understanding is that, in general, employees have no expectation of privacy at work other than in areas such as bathrooms and changing areas.
posted by decathecting at 6:30 AM on January 24, 2011

I don't know about recording conversations, but I've worked in a lot of retail stores and they've all had videocameras monitoring the sales floor and cash registers. Employee theft is by far the biggest source of loss for retailers.
posted by something something at 6:48 AM on January 24, 2011

yes, in CA it's a two-party consent law... you can videotape, but you'd have to post some type of notice.


and more:

It is a crime in California to intercept or eavesdrop upon any confidential communication, including a telephone call or wire communication, without the consent of all parties. Cal. Penal Code §§ 631, 632. It is also a crime to disclose information obtained from eavesdropping. However, an individual can still be convicted without disclosing information. Two appellate courts have held that there is no disclosure or publication requirement for violation of the Privacy Act by recording confidential communications without consent. Coulter v. Bank of America, 28 Cal. App. 4th 923 (Cal. Ct. App. 1994). Marich v. MGM/UA Telecommunications, Inc., 113 Cal. App. 4th 415 (Cal. Ct. App. 2003).

Eavesdropping upon or recording a conversation, whether by telephone or face-to-face, when a person would reasonably expect their conversation to be confined to the parties present, carries the same penalty as intercepting telephone or wire communications. A California appellate court ruled that a network’s broadcast of a news report that used excerpts from secret recordings during two patient examinations violated the privacy rights of the physician, who had a reasonable expectation that his communications with his patients would be private and not recorded. Lieberman v. KCOP Television, Inc. 110 Cal. App. 4th 156 (Cal. Ct. App. 2003).

But, conversations that occur at any public gathering where one could expect to be overheard, including any legislative, judicial or executive proceeding open to the public, are not covered by the statute. For example, when a television network used a hidden camera to videotape a conversation that took place at a business lunch meeting on a crowded outdoor patio of a public restaurant, the conduct did not violate the Penal Code’s prohibition against eavesdropping because it was not a “confidential communication.” Wilkins v. NBC, Inc., 71 Cal. App. 4th 1066 (Cal. Ct. App. 1999).

However, an appellate court has ruled that using a hidden video camera in a private place does violate the statute. California v. Gibbons, 215 Cal. App. 3d 1204 (Cal. Ct. App. 1989). It is not a crime to take notes during a conversation or later summarize or disclose one’s recollection of a communication. People v. Wyrick, 77 Cal. App. 3d 903 (Cal. Ct. App. 1978).

A first offense of eavesdropping is punishable by a fine of up to $2,500 and imprisonment for no more than one year. Subsequent offenses carry a maximum fine of $10,000 and jail sentence of up to one year. Intercepting, recording, and disclosing information each carries a separate penalty.

Anyone injured by a violation of the laws against disclosure of telegraphic or telephonic messages can recover civil damages of $5,000 or three times actual damages, whichever is greater. Cal. Penal Code § 637.2(a). A civil action for invasion of privacy also may be brought against the person who committed the violation. Cal. Penal Code § 637.2.
posted by fozzie33 at 7:07 AM on January 24, 2011 [3 favorites]

fozzie covered it pretty clearly. Video of public areas is fine, audio requires the consent of anyone being recorded.

One thing I would suggest is that you go back and read any employee handbook that your wife may have been given when she started there. I've found that people rarely read the whole handbook and if the owner had put something in there about recording employees and your wife signed off then she has given her permission.

If she hasn't given permission then you should probably contact a lawyer. Don't be surprised if the lawyer starts asking her a bunch of questions about how much time your wife works and if she has ever not been paid for overtime and kind of ignores the eavesdropping thing. OT cases (especially in CA) are worth a LOT of money. A first offense of eavesdropping isn't.
posted by magnetsphere at 9:04 AM on January 24, 2011

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