Friday, April 3, 2015

California Court of Appeals Limits Use of Secret Recordings in Administrative Investigations

In Telish v. State Personnel Board the California Court of Appeal clarified when an employer may use secret recordings. It is against the law for an employer to secretly record its employees. An employer may secretly record its employees if it is investigating a crime. But an employer may not fake a criminal investigation in order to secretly record its employees.
A police chief reported suspected criminal behavior by a DOJ employee to the the DOJ. The DOJ began a criminal investigation of Telish’s conduct. As part of that investigation, the DOJ asked the woman to record telephone conversations with Telish. These recordings were made without Telish’s consent.
The DOJ completed its investigation and submitted its findings to the Orange County District Attorney. The district attorney declined to prosecute. But the DOJ fired the employee because he violated company rules. The DOJ relied on the secret tape recordings to fire employee. The employee sued the DOJ saying the recordings violated California statutes.

The California Court of Appeal for the Second District upheld the termination. California Penal Code section 632 states one cannot secretly record someone. California Penal Code section 633 provides an exception to this rule. A law enforcement agency may record someone without their consent if the recording is part of a criminal investigation. Furthermore, a law enforcement agency may direct a private citizen to make the recording. Here, the accuser recorded the employee as part of a criminal investigation. Thus, the Court of Appeal ruled the recordings were appropriate under the exception in California Penal Codesection 633.

The employee argued the statutes prevented the use of the recordings in an administrative termination. The Court of Appeal did not agree. Nothing in the statutes prevents the employer from using a recording made as part of a legitimate criminal investigation in an administrative investigation. Here, the DOJ investigation originally focused on criminal activities. Therefore, when made, the recordings were pursuant to a valid criminal investigation. Thus, California Penal Code section 633 applies and the recordings may be used as part of an administrative investigation.

An employer may not lie and label an investigation “criminal” in order to secretly record its employees. There must be real facts that demonstrate an on-going criminal investigation. The recording must be made pursuant to that investigation.