Not Your Call: California Employers May Pursue Damages for Employees’ Illegal Recordings

In the age of smartphones, virtually everyone has a recording device at his or her fingertips—including employees. This can present challenges in the workplace. For example, smartphones and other technology enable employees to secretly (read: illegally) record business meetings, disciplinary discussions with HR, and interactions with other employees. Not only does this violate privacy rights and trust, it also risks disclosing confidential company or employee information. Fortunately, employers are not without a remedy. California’s privacy laws offer protection against illegal recordings by employees.

California law makes it illegal to record confidential communications without the consent of all parties and provides a private right of action against someone who makes an illegal recording. Specifically, the California Privacy Act prohibits using “an electronic amplifying or recording device to eavesdrop upon or record [a] confidential communication” without the “consent of all parties to [the] confidential communication.” Cal. Penal Code § 632. It also authorizes a “person who has been injured by a violation” of the statute to bring a civil claim. Id. § 637.2. The Act defines “person” to include “an individual, business association, partnership, corporation, limited liability company, or other legal entity.” Id. § 632. Under these laws, one injured by an illegal recording can recover three times the amount of actual damages or $5,000 per violation. Id. § 637.2. No actual damages need to be shown. Id. Further, attorneys’ fees, though not automatic, might be available under California Civil Procedure Code § 1021.5, which allows a court to “award attorneys’ fees to a successful party against one or more opposing parties in any action which has resulted in the enforcement of an important right affecting the public interest” in certain circumstances.

California courts have expressly permitted employers to sue employees under the California Privacy Act for illegal recordings. For example, in Ion Equip. Corp. v. Nelson, 110 Cal. App. 3d 868, 880 (1980), the court allowed an employer to sue a former employee for surreptitiously recording a conversation against another employee. Likewise, in Coulter v. Bank of America, 28 Cal. App. 4th 923, 930 (1994), the court awarded damages to an employer and several employees on their cross-claim against the plaintiff in an employment case where the plaintiff, in discovery, produced secret tape-recordings of his conversations with eleven different employees—all made without those employees’ consent.

To reduce the risk of employees illegally recording workplace happenings in the first instance, employers may consider adopting polices prohibiting unauthorized video and audio recording at work. These policies should be tied to legitimate business interests, such as security concerns, protection of proprietary, trade secret, and confidential information, employee privacy and legal compliance. In guidance issued last year, the National Labor Relations Board (“NLRB”) took the position that employer’s “no recording” policies are generally permissible, so long as they do not specifically target employees’ right to engage in “concerted activities for the purpose of collective bargaining or other mutual aid or protection” under Section 7 of the National Labor Relations Act (“NLRA”). Indeed, the guidance noted that restricting recordings might actually “encourage open communication among employees.”