68 | 2025 Cal-Peculiarities ©2025 Seyfarth Shaw LLP www.seyfarth.com 4.6 Tape Recording and Videotaping 4.6.1 Confidential communications It is a crime for a California employer or employee to surreptitiously tape-record confidential communications.48 This prohibition applies to both in-person conversations as well as telephone communications. Put simply: the law generally prohibits tape-recording conversations without the permission of everyone in the conversation. Violators are liable for civil penalties in amounts of up to $5,000 per violation, or three times any actual damages, whichever is greater.49 The recording may not be used as evidence, except to prove a violation of the statute or if the evidence is relevant in a criminal proceeding, under the “Right to Truth-in-Evidence” provision of the California Constitution.50 4.6.2 Restrooms, locker rooms, changing rooms California employers are prohibited from video- or audio-taping their employees in a restroom, locker room, or any room that the employer has designated for changing clothes, unless authorized by court order.51 4.6.3 Secret videotaping in open areas While video surveillance of public areas in the workplace is generally permissible, employers must gauge the employee’s reasonable expectation of privacy in the area to be recorded. For example, in Hernandez v. Hillsides, Inc., the California Supreme Court held that employees have reasonable expectations of privacy against their employer with respect to their activities in a closed shared office.52 In Hernandez, the employees sued their employer upon discovering that it had installed a covert video camera in order to catch night-time intruders in the office shared by the plaintiffs, who worked only during the day. The appellate court held that the plaintiffs could sue for invasion of privacy even if the camera never actually observed them, on the theory that mere intrusion into their workplace solitude was actionable.53 The Supreme Court reversed this odd result because, although the employer did intrude upon the plaintiffs’ privacy, the surveillance—being narrowly tailored in place, time, and scope, and reflecting legitimate business concerns—was not highly offensive and never caught the plaintiffs on videotape.54 The California Supreme Court has also held that employees have the right to privacy, even in an open workplace, against surreptitious intrusions and recordings by members of the general public.55 4.7 Medical Records 4.7.1 Civil Code § 56 California employers must establish procedures to keep employee medical records confidential (e.g., implementing a security system that restricts access to medical information).56 California employers must not— unless complying with court orders, administering employee benefits, litigating medical issues the employee has put in controversy, determining eligibility for medical leaves, or disclosing information to a provider for diagnosis or treatment where the patient is unable to authorize it—use or disclose medical records unless the employee has signed a special release.57 California employers must not discriminate against an employee who refuses to sign that release, but may take necessary action in the absence of medical information if the employee refuses to sign the release.58 (See § 3.6.1.) The release must meet several requirements, e.g., the language must be separate from other language, and must be handwritten or in no smaller than 14-point font. Moreover, the release must authorize only the release of medical information, be limited in purpose, and state an expiration date or event. The expiration date or event must limit the duration of the release to one year or less, unless the person signing the release requests a specific date beyond a year. Additionally, the release must
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