Workplace harassment comes in many forms. Some employers hurl insults, some deny promotions, some scream at their teams at every weekly meeting. Sometimes it’s unwanted touching, sometimes it hurts your career, but no matter the details the worst kind of workplace harassment is the kind done in secret.
This happens to so many more people than any of us realize: The boss or one nasty coworker singles out a victim. Most of the time, the harasser seems nice or at least normal. But when you’re alone, the abuse begins. You may fear that others won’t believe you, maybe someone hasn’t. Soon, you may start to think about secretly recording yourself at work to make an irrefutable record of the abuse. But is it legal?
Today, we’re here to help California employees understand when and how it is legal to use recordings to prove hidden workplace harassment.
What the EEOC Says About Defensive Self-Recording
According to the EEOC, employees have a right to perform ‘protected activities’ without retaliation from their employers. In previous cases, self-recording to report workplace violations has been considered a protected activity. However, there are two very important caveats here.
First, self-recording is much more likely to be acceptable than surveillance recording. In other words, you must be a present participant in the scene recorded. Either from your perspective or events you were a part of. This way, the video acts only as a backup to your own testimony and does not constitute as spying.
Second, all EEOC judgments occur after state law determines if the recording was legal to begin with. So it’s important to understand the strict California laws regarding making video or audio recordings of others.
What California Law Says About Self-Recording
Firstly, there is a difference between video and audio recordings. It is legal to record video and audio in all areas considered public, and private video recordings without audio are more legal than with audio, or simply audio recordings. Why? Because of wiretapping laws, and California’s strict two-party consent laws relating to wiretapping.
Two-party consent means that it is illegal to record ‘private conversations’ without the consent of everyone involved. With or without video. However, if you are in a public area (ex: cafe), or an area with no reasonable assumption of privacy (ex: stairwell) then you can record audio and video freely. Video in bathrooms is illegal but video of your own closed office is not, unless you then trick someone into entering your office and speaking with the assumption of privacy.
So there are some gray areas, but your best bet is to know where the ‘public’ areas that are safe to record are, and the difference between private and public recording under the law.
Two-Party Consent Private Recording
If you record someone in a place they have a reasonable expectation of privacy, California’s strict two-party consent rule comes into play. This law requires you to have the permission of everyone involved to make a recording in a private area. In other states, one-party consent means that only one person involved has to consent for a recording to be legal.
Places where people have a reasonable expectation of privacy include:
- You can record inside your own home. Ex: “Nanny Cam”
- Any Bedroom
- Any Bathroom
- A Private Office
- A Designated Pumping Room
- Changing Rooms
Recording in Public Places
However, if a person cannot reasonably assume privacy in their location, then a recording is legal without their permission. Public places are anywhere where they could be reasonably overheard or seen by unknown third parties. This is why filming a crowd on the street is generally legal, for example.
Places that can be considered public include:
- On the Street
- Restaurant or Lobby
- Warehouse or Store Room
- In an Open Work Space
- In a Stairwell
- Parking Lot or Garage
- Anywhere that Might Have Security Cameras
Can You Record to Document Workplace Harassment?
Now that we’ve covered the law, let’s talk applied self-protection in a California workplace.
If your harasser invites you into their office and closes the door, if they harass you in their home or car, or if they harass you in the bathroom, recordings are not an option. However, most other workplace scenarios are fair game.
If they harass you in an open or shared workspace but when everyone else is gone, you can record them audio and video. If they harass you in meetings in public meeting spaces, you can record them. And, of course, if they leave spiteful voicemails you can keep those as the other person has already recorded themselves, and therefore given implicit consent.
Finally, if they harass you in your own office or car, you can record audio at least.
For any situation where you determine that video is appropriate but audio is not, we encourage you to fill in the blanks with a journal entry of the soundless video encounter. If what you write is accurate and matches the lips in the video, it will likely be considered acceptable evidence of the negative encounters you experience.
Can you record video to prove you’re being harassed at work? In California, the laws are in favor of privacy but the EEOC is on your side. Not to mention, most workplace environments can be reasonably treated as public, rather than private. Especially if you work (and are harassed) in an open floorplan designed office.
At Aiman-Smith & Marcy, we have dedicated our careers to defending the rights of employees against abusive employers. Whether the abuse is widespread wage fraud or pinpoint harassment of a single person, being mistreated at your job is unjust and violates your rights to peacefully make your living. If you’d like greater guidance on how to legally defend yourself from workplace harassment, contact us today. Our team is eager to hear your story and to help in whatever way we can.