Working World

I have a conference call scheduled with my supervisor and an HR representative, and I would like to record it so I can have a record of what is said. I’m afraid, however, that if I ask for permission to record the call they will say no. Can I do it without asking?  

No. According to the California Privacy Act, it is a crime in this state to record a confidential communication — including telephone and cell phone calls or wire communication — without the consent of all parties.

A confidential conversation is one in which the participants would reasonably expect their conversation to be confined to the parties present. A conference call carried on behind closed doors, especially one involving human resource issues, would be considered a confidential communication.   

In a similar situation, 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. On the other hand, a conversation that takes place in a public place, such as a restaurant, or in other circumstances where one would reasonably expect the conversation might be overheard, would be less likely to be considered a confidential communication.  

Serious criminal penalties apply for illegally recording a confidential communication. A first offense for violation of the Privacy Act 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 a jail sentence of up to one year. Recording and disclosing confidential communications each carries a separate penalty.

If that were not enough risk, you would face potential civil liability as well. You could be held liable for damages for breach of the privacy of the other participants to the conversation secretly recorded. Your coworkers could also sue you for violation of the Privacy Act and possibly recover $5,000 per violation or three times actual damages, whichever is greater.

In sum, you cannot record a confidential conversation in California without the consent of all parties. Just take detailed notes.   

Amy Semmel is an attorney with the firm of Donfeld, Kelley & Rollman. Her practice emphasizes employment, trade secret and business tort law. The information discussed here is a general explanation of the law, and is not intended to serve as legal advice. Readers requiring legal advice regarding a specific situation should consult an employment attorney.

1 COMMENTS

• Catherine Rhodes

  In this day of Flip video recorders, it's important to remember there are legal restraints on the invasion of private conversation.

  Sep 11, 2009