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Pause and Think Before You Hit Record: The Implications of Secret Recordings in the Workplace

By: Christopher Dolan and Vanessa Deniston

 

This week’s question comes from Edgar M…

Q: “I work for a large corporation with offices nationwide. I was recently switched to a new department, and already, I have been having problems with my new direct supervisor. He regularly makes racially charged comments around me, which I find offensive. I have told him to stop, but that has only made things worse. I have tried complaining to my HR representative about this behavior, but she is good friends with my direct supervisor and doesn’t believe my reports. I feel the only way I will be taken seriously is if I am somehow able to record my supervisor’s racist comments as proof. Can I do this if no one will take me seriously?”

A: Thank you for your question, Edgar. Certainly, the impulse to capture an injustice on tape is a hard impulse to ignore, especially when those around you are turning a blind eye to or claiming it isn’t happening. Secretly recording someone without their knowledge and consent, however, is a criminal offense under state and federal law with serious consequences.

The federal Wiretap Act of 1968 (18 U.S.C. § 2511) provides it is illegal to secretly record any oral, telephonic, or electronic communication that the communicator would reasonably expect to be private. The California Penal Code § 632(a), enacted under the California Invasion of Privacy Act of 1967, makes it illegal for any person to intentionally and without the consent of all parties to a communication use a recording device to record a confidential communication, whether or not the conversation occurs in person or through some other medium, such as over the phone. Such an offense may be punished by a fine of up to $2,500 per violation and/or by a term of imprisonment of up to one year. California is one of a handful of states with a “two-party [or “all-party”] consent” law, meaning the consent of every single party to the conversation is required before a person can legally record a confidential conversation. In other words, if nine out of ten board members agree you can record a private board meeting, that is one too few.

These criminal consequences will outweigh any potential benefit you may derive from capturing such evidence on tape, especially because in nearly all cases, secret recordings are not admissible evidence in court. Penal Code § 632(d) provides that unless you are trying to prove a violation of section 632 itself, any evidence obtained as a result of recording a confidential communication is not admissible in any judicial, administrative, legislative, or other proceeding. In short, if you have a secret recording of your supervisor spouting racist inappropriate comments that you feel is a smoking gun for your case, it will likely be excluded long before a jury can ever hear about it.

The grey area lies in whether there is a reasonable expectation of privacy in the space where the recording is made. The answer to this question depends on the recording’s location and context. For instance, there is a big difference between recording a conversation in a busy airport terminal and recording a private disciplinary meeting between you, your supervisor, and a Human Resources representative in an office behind a closed door. This is because it is reasonable to expect that a conversation in public airport terminal to be overheard by people passing by. The same is not true for the private HR meeting. 

Context may be nuanced, however. There may be reasonable expectation of privacy in that same airport terminal at 4:00am on arrival of a red-eye flight if the conversation occurs in an empty corner of the terminal where there are no staff or people in sight. Likewise, a conversation at top volume in the doorway of your supervisor’s office adjacent to an open floor plan in earshot of the entire office. There is quite a different expectation of privacy in this context, as opposed to the private HR meeting.

Even if you believe, however, that you are in an environment where there is no reasonable expectation of privacy, there are many variables to be considered and it’s likely not worth the risk. If you believe your supervisor is doing or saying something inappropriate, rather than record them, make a written complaint to your Human Resources department, quoting the specific language you heard or describing the conduct you observed and indicating it made you feel uncomfortable. By creating a written record with your employer, you protect yourself far more than you do by making a recording that could potentially expose you to criminal liability.  Always contact an employment attorney to assist you in taking legal, effective steps towards addressing a difficult workplace issue.

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Safety Regulations for Commercial Trucks Carrying Fruits and Vegetables

This week’s question comes from Mark C. in Modesto who asks:

Q: “Yesterday morning I was driving on the freeway when a large semi-truck merged into my lane. The semi-truck was loaded with tomatoes which were not covered and appeared to be overflowing. As he merged into my lane the semi-truck jerked a bit, which caused some of the tomatoes to fall and splash onto my windshield and on the road ahead of me. I lost control of my vehicle and I almost crashed into the center divider. Thankfully, I was able to regain control of my vehicle, but this incident could have easily turned into a tragic accident. What are the laws regarding commercial trucks transporting fresh produce? Shouldn’t they be required to cover the fresh produce or refrain from over loading the truck to prevent spillage?”  

 

A: Mark, I am glad to hear that you were not seriously injured, although I can imagine this was a frightening experience. California has established laws that apply to just this risk of escaping cargo posed commercial trucks. The purpose of these laws is to prevent spillage, which can cause traffic problems and, most importantly, serious injury or death to other motorists driving on the highway.

Under California Vehicle Code Sections 23114 and 23115, it is against the law to operate on the highway a vehicle which is improperly covered, constructed, or loaded so that any part of its contents or load spills, drops, leaks, blows, sifts, or in any other way escapes from the vehicle. The only contents that are allowed to fall from a truck are feathers from live birds and clear water. California Vehicle Code Section 24002 also provides that, “It is unlawful to operate any vehicle or combination of vehicles which is in an unsafe condition, or which is not safely loaded, and which presents an immediate safety hazard.” Moreover, the Department of Motor Vehicles’ (“DMV”) Commercial Driver Handbook also provides that any person who willfully or negligently damages any street or highway is liable for the costs of removing the debris from the roadway. A driver can be cited for spilling tomatoes on the road and the company can be fined for the costs incurred to clean up the mess. The semi-truck that merged into your lane had a duty to abide by both the California Vehicle Code’s spill protection safety requirements and the the littering prevention mandates of the DMV Commercial Driver Handbook. .

Under the common law doctrine of respondeat superior, codified in California Civil Code Section 2338, the employer of an individual is responsible for the torts (wrongs) committed by its employee that happen within the “scope and course of their employment,” in order to spread the risk through insurance and carry the cost thereof as part of his costs of doing business. In this case, the trucking company had the responsibility to make sure that the tomatoes were properly loaded. The cargo on the semi-truck should have been covered or in the alternative it should have been loaded with sufficient space below the upper edge of the semi-truck to prevent spillage. Clearly, the semi-truck driver and his employer did not follow the safety requirements as provided by California laws and negligently packed the tomatoes, which subsequently caused them to fall off the truck as the semi-truck was merging into your lane.

Such negligent conduct by companies in charge of transporting cargo can cause serious personal injury to motorists on the road when they fail to follow safety procedures. In your case, as a result of their negligence, tomatoes splashed onto your windshield and onto the roadway which caused you to lose control of your vehicle. Generally, the statute of limitations for personal injury is two years from the date of the incident; however, it is important to highlight that if a government entity is involved, such as the California Department of Transportation (“CalTrans”), under California Government Code Section 910 you must bring a claim against the government entity within six months after the incident. you must serve a 910 Government Claim Form on the district, and certain specific rules about serving this document, what must be included in this document, and when it must be filed must be followed to provide the district notice that you will file a civil case. I urge you to contact an attorney experienced in this area to assist you in this complex process.

We have handled numerous cases in which individuals have suffered bodily injuries due to the negligence of semi-truck drivers. However, this column does not constitute legal advice and it is important that you consult with an experienced trial lawyer as soon as possible, especially if you you suffered personal injuries.

 

Christopher B. Dolan is the owner of the Dolan Law Firm. Email Chris questions and topics for future articles to help@dolanlawfirm.com.
We serve clients across the San Francisco Bay Area and California from our offices in San Francisco, Oakland, and Los Angeles. Our work is no recovery, no free or also referred to as contingency-based. That means we collect no fee unless we obtain money for your damages and injuries.

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