Blog

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.

This week’s question comes from Angela in Berkeley, who asks:

Q: “I work part-time at a restaurant to help pay for school. My mother is not in great health and lives alone, so sometimes I’m the only person who can help her when she’s too sick to perform daily functions. I’ve heard that even shift workers in California earn paid sick leave, but I don’t understand how that works or if I can use it to take care of my mother. I’m afraid to ask my employer in case they think they should stop scheduling me for as many shifts.”

A: Thank you for your question, Angela. I am sorry to hear about your mother and the tough situation you find yourself in. Luckily, both the state of California and the city of Berkeley have paid sick leave (“PSL”) laws that should offer you some comfort. By law, your employer is required to post a notice of your rights to paid sick leave in a conspicuous place at the worksite.

California’s Healthy Workplace Healthy Family Act of 2014 provides the equivalent of one PSL hour per 30 hours worked by any employee who works for at least 30 days within the state for a given employer, with very limited exceptions. Unless you work on an airplane crew or are a member of a union that has explicitly waived PSL rights by contract, you are covered by PSL protections. Employees begin accruing PSL hours on the first day of employment and may begin to use them starting on the 90th calendar day of employment. Employers must record the number of PSL hours accrued by all non-exempt employees on end of pay-period wage statements and retain all records of PSL hour accrual and use for three years. If an employee is rehired by an employer within one year of the date of separation, all previously accrued PSL hours must be immediately reinstated. PSL hours must be paid on the payday for the next payroll period as usual, at the average hourly wage over the previous 90 days of employment.

Where city and state laws conflict, employees enjoy the rights provided by the more protective policy. Effective October 2017, the City of Berkeley’s minimum wage ordinance further protects PSL rights for any employee who works at least 2 hours in a calendar work week within the city. Another difference between the protections provided by the state and city involves the maximum number of PSL hours an employee may use and accrue over each year of employment. California law allows all employers to cap use of PSL hours to 24 per year and cap accrual at 48 per year. The City of Berkeley’s ordinance provides different limits for smaller employers (with 24 or fewer employees) versus larger employers (with 25 or more employees). Smaller employers in Berkeley may cap both use and accrual of PSL hours at 48 per year. The city ordinance allows larger employers less leeway, allowing them to cap accrual of PSL hours only at 72 per year and does not allow such employers to limit employees’ use of PSL at all.

As to your question about taking PSL to care for your mother, PSL hours may be used for any medical need of an employee or the employee’s children, parents, spouse or registered domestic partner, grandparents, grandchildren, and siblings. Children and parents under this law include step, adopted and foster children and parents. Additionally, Berkeley’s ordinance provides the employee the ability to designate one additional person for whose care PSL may be used if that employee does not have a spouse or registered domestic partner.

An employee must provide their employer with “reasonable” advance notice of taking PSL if the need is foreseeable. For example, an employee cannot ask to take paid sick leave on the same day for a medical appointment scheduled weeks ahead of time. However, if the need is not foreseeable, such as when your mother needs you to care for her unexpectedly, the employee must merely provide notice as soon as possible. Under state law, an employer may not require an employee to provide documentation of the medical need causing the PSL use.

The law specifically provides that if you accumulate paid sick leave and take it for a valid reason, your employer cannot retaliate against you for doing so. There is a rebuttable presumption of retaliation if the employer takes any negative employment action, including reducing your scheduled shifts, within 90 days of taking PSL; that is, the law will presume the employer is retaliating unless they provide an unrelated lawful business reason for the action. If your employer retaliates against you for requesting or using a paid sick day, you can file a complaint with the California Labor Commissioner’s office or consult with a trial attorney to protect your rights.