WHEN CAN YOU RECORD A PERSONNEL INVESTIGATION INTERVIEW?

Investigating allegations that an employee engaged in misconduct often means interviewing that employee, as well as witnesses.  A common concern among Human Resource professionals is whether they should or can record the interview by tape or digital means. When community college districts or other employers choose to record the interview, the employee or the employee’s representative sometimes opposes this.  One increasingly frequent assertion by employees is that it is unlawful and a violation of Penal Code section 632 for the employer to record the interview unless the employee consents. However, that assertion is not entirely true, and as long as the correct procedures are followed and disclosures are made, investigators can and typically should record interviews during an administrative investigation.

Penal Code section 632 provides that any “person” who intentionally and without the consent of all parties to a confidential communication mechanically records the “confidential communication” is subject to a fine (not exceeding $2,500) and imprisonment (not exceeding one year). A “person” includes legal entities, as well as individuals acting or purporting to act on behalf of any government or federal, state, or local subdivision.  A “confidential communication” includes any communication carried on in circumstances that reasonably indicates that any party to the communication desires it to be confined to the parties thereto, but does not include communications made in public gatherings, public proceedings, or in any other circumstance in which the parties to the communication may reasonably expect that the communication may be overheard or recorded. If a person unlawfully records a confidential communication, not only may the person be found criminally liable, but the recording cannot be used in any judicial, administrative, legislative, or other proceeding.

To violate Penal Code section 632, the recorded communication must be “confidential.”  A communication is not confidential when all parties to the communication know it is being overheard or recorded. The California Supreme Court case of Kearney v. Salomon Smith Barney, Inc.,_[1] addressed the issue of whether Section 632 can be violated where the fact that a conversation is being recorded is disclosed.  The Kearney Court held that Section 632 only prohibits secret or undisclosed recordings of conversations._[2]  Penal Code section 632 specifically “excludes an individual known by all parties to a confidential communication to be overhearing or recording the communication.” As a result, when the recording of a conversation is disclosed prior to the conversation starting, the recording does not violate Section 632.  The Court explained this as follows:

As made clear by the terms of section 632 as a whole, this provision does not absolutely preclude a party to a telephone conversation from recording the conversation, but rather simply prohibits such a party from secretly or surreptitiously recording the conversation, that is, from recording the conversation without first informing all parties to the conversation that the conversation is being recorded.  If, after being so advised, another party does not wish to participate in the conversation, he or she simply may decline to continue the communication.  A business that adequately advises all parties to a telephone call, at the outset of the conversation, of its intent to record the call would not violate the provision._[3]

Based on the Kearny case, a community college district’s tape-recording of investigatory interviews cannot constitute a violation of Section 632 if the district’s chosen investigator discloses that the interview is being taped before it starts. As a result, the tape-recording is not secret or surreptitious. Also, the individual being interviewed cannot claim to have a reasonable expectation the interview is not being recorded, when he or she has expressly been advised that it is being tape-recorded.

Although the Supreme Court resolved the issue in Kearney, subsection (c) of Penal Code 632 also supports the right to tape record the interview in spite of opposition from the witness. Subsection (c) expressly states that “confidential communication” excludes a communication carried on in “any other circumstance in which the parties to the communication may reasonably expect that the communication may be overheard or recorded.”  California cases analyzing the meaning of “confidential communication” have historically used two different tests.  The first test is that for a communication to be “confidential,” there must be an expectation the conversation would not be “divulged” to a third party._[4] The other test is that the party need only reasonably expect that no one is recording or eavesdropping._[5]  Under either test, an investigatory interview is not a “confidential communication” where the interviewer discloses both the fact that it is being tape recorded and that it will be provided to others before the interview starts.

IIt is important to note that a community college district has a legitimate business reason for tape-recording interviews.  It is important that statements be accurately recorded, so that decisions on whether discrimination or other misconduct occurred, and whether employees or students will be disciplined, can be made based on accurate factual information.  Indeed, the California Legislature and courts have confirmed the importance of investigations in a variety of different contexts._[6]  Tape-recording interviews to make sure they are accurately memorialized is consistent with the importance of conducting proper investigations.

Where community college districts choose to record investigative interviews, prior to conducting investigatory interviews, the investigator should inform the employee or other witness that (1) the interview is being recorded by tape or digital; and (2) that the recording may be provided to other individuals in connection with the investigation or other related proceedings.  This disclosure will protect against claims that the recording is a violation of Penal Code section 632.