Can-I-Legally-Record-Myself-to-Prove-Workplace-Harassment-in-California.jpg (4297×2317)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:

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:

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.

Leave a Reply

Lisseth Bayona


Education and Background

I am a Los Angeles native and daughter of Salvadorian immigrants. From an early age, my parents instilled the value of hard work and education in me and my two siblings. Their perseverance enabled each of us to graduate from college and earn professional degrees.

My interest and commitment to workers’ rights have roots in my parents’ experiences as undocumented workers in Los Angeles. Witnessing the challenges they faced inspired me to pursue a career where I can help individuals confronted with similar struggles. To help someone in those moments is very satisfying. I love connecting with people and learning about their stories. I believe that dignity in the workplace is a right of all workers, not a convenience or privilege reserved for employees of a certain race, gender, age, sexual orientation, or gender identity.

Legal Experience

I received my J.D. from the University of Southern California (USC) Gould School of Law. While there, I served as a judicial extern to the Honorable Patrick J. Walsh of the United States District Court for the Central District of California, where I drafted a criminal judicial opinion. Also, while at Gould, I served as an extern for the U.S. Attorney’s Office for the Central District of California. As a Criminal Division Extern, I had the opportunity to work closely with a trial team of Assistant U.S. Attorneys on a money laundering case which further sparked my interest in litigation.

Personal Interests

In my free time, I enjoy urban vegetable gardening, traveling, and spending time with my nephew and niece. I also love to spend time at San Onofre Beach learning to surf, although admittedly, I am not very good.



Hallie L. Von Rock

Attorney (SBN 233152)

Education and Background

I moved to the Bay Area from Washington after graduating high school. I had been accepted to UC Berkeley through a program where I could defer for two years while getting my California residency and attending community college, which was significant since I was paying for college on my own. I began working for Randall Aiman-Smith and Reed Marcy in 1996 as an office manager while taking night classes. My first foray into the legal world was soon after starting at the firm when I was ready to transfer to UC Berkeley. Rather than accepting my resident status, the Board of Regents took the position that California residency required a student to be in California “two calendar years.” Randall and Reed took up my case with the same verve as they helped their actual clients and I got the chance to comb through the UC Berkeley library to read their codes and regulations to support my position. In that experience, I learned what is was like to feel helpless against a big organization and then to have dedicated attorneys in my corner to take up my cause.

After a break to pursue my major in art history, I went to UC Hastings College of Law and continued working with Randall and Reed. Having worked together now for over 25 years, we have a unique ability to work collaboratively and finish each other’s sentences. I have strived throughout my career to make a difference in the lives of our clients. At the end of the day, if I am helping someone to get compensation for losses they suffered, then I know that all the work put into a case has been worth it.

Legal Experience

I have extensive experience in civil litigation and class action cases, including conducting discovery and depositions, calculating damages analysis, preparing motions for certification, writing appellate documents, and overseeing claims administration. We have handled several class actions against retailers where plaintiffs claimed they were forced to purchase clothing to wear to work and were not compensated for these purchases, including against Abercrombie & Fitch, Hugo Boss, Armani Exchange, Uniqlo, Dollar Tree, and Ross. Recently, I was trial counsel in a defamation claim against Bank of America on behalf of a former employee who claimed the Bank blacklisted her with future employers. The jury found Bank of America liable, including for punitive damages.

Personal Interests

Aiman-Smith & Marcy has sponsored me in the Boston Marathon and New York Marathon. When I race, I often wear a “Rockstar Ronan” shirt to support research for childhood cancer through The Ronan Thompson Foundation.


University of California, Berkeley, B.A., 1999

Hastings College of the Law, University of California, J.D., 2004

Randall Aiman-Smith

Abogado (SBN 124599)

Aiman-Smith & Marcy. Oakland consumer fraud attorneys.

Educación y antecedentes

Fui afortunado. A pesar de no haber terminado la escuela secundaria o la universidad, pude -aunque con mucho trabajo- ser admitido y sobresalir en una de las mejores escuelas de derecho del país: La Facultad de Derecho de la Universidad de Berkeley. Mientras estuve allí, tuve el privilegio de ser editor de la California Law Review y miembro del Moot Court Board, asesorando en la redacción de escritos y en la defensa de apelaciones a otros estudiantes. Después de salir de la escuela de derecho, en mis primeros años de práctica, enseñé la escritura legal y la defensa de apelación en la Universidad de California, Hastings College of the Law. También, a lo largo de los años, he sido presentador en eventos de educación legal continua.

Experiencia legal

He sido abogado durante 35 años. He dedicado mi práctica exclusivamente a representar a empleados, consumidores e inversores en los tribunales estatales y federales de primera instancia y en los tribunales de apelación. Me gusta ir a los tribunales por mis clientes y he llevado muchos casos con jurado en los tribunales estatales y federales.

¿Ejemplos? En 2010, fui la abogada principal, junto con los otros abogados del bufete, en el caso Williams v. Union Pacific Railroad donde, después de cuatro años de preparación, el bufete obtuvo un veredicto del jurado de 1.670.000 dólares para una empleada afroamericana. En Rivero v. Surdyka, fui el abogado principal en el juicio y la apelación de un caso de derechos civiles que duró 15 años, incluyendo un juicio completo y tres apelaciones al Noveno Circuito, concluyendo finalmente con una sentencia para los demandantes de más de 2.300.000 dólares. Estos casos ilustran el lema del bufete: compromiso – resultados. Hay que comprometerse con un caso, a veces durante mucho tiempo, para obtener el resultado que el cliente merece.

No siempre ganamos en el juicio. Cuando eso ocurre, el compromiso significa llevar el caso al siguiente nivel y recurrirlo. En el caso Rivero, antes mencionado, eso fue lo que ocurrió: el tribunal desestimó el caso -habíamos perdido- pero apelamos y conseguimos una victoria para nuestros clientes que mantuvimos a través de dos apelaciones más. Desde entonces, el bufete ha conseguido muchas victorias en apelación que reivindican los derechos de los empleados y los consumidores.

A lo largo de los años he sido abogado de los demandantes en numerosos casos individuales y acciones colectivas. Puede sonar cursi, o difícil de creer, pero después de todo este tiempo, y después de todas las grandes experiencias que he tenido, mi parte favorita de ser abogado es cuando consigo dar un cheque a mi cliente.



Facultad de Derecho, Universidad de California, Berkeley, J.D., 1986