Disciplinary and Harassment Investigations

The Federal Crime Control and Safe Streets Act, 18 USCA §§ 2510-2520, and California Penal Code §§ 630 et seq., make it illegal to intentionally intercept any wire, oral or electronic communication without consent. However, Penal Code § 632 makes it a crime to eavesdrop or record any confidential communication without the consent of all participants to the communication. A confidential communication is any communication carried on in circumstances reasonably indicating that any party thereto desires the communication to be confined to the parties. The prohibition also applies to prevent any of the participants from secretly recording any part of the communication. 97 Since California criminal law prohibits tape recording or electronically monitoring private conversations unless both parties consent, secretly monitored phone conversations will almost never play a role in disciplinary investigations. b. Video Surveillance Specific to video surveillance, privacy limits still apply under both federal and state law. The cases below illustrate and apply the reasonable expectation of privacy standard.

i. Cases Where Permitted

Sacramento County Deputy Sheriff’s Association v. Sacramento County et al. 98 There are situations where an employer may secretly videotape its employees. The court held that deputy sheriffs working in a jail environment have diminished privacy expectations because of the nature of their employment. Thus, where prison officials were investigating apparent theft of inmates’ cash from the office, deputies did not have a reasonable expectation of privacy against being videotaped by hidden cameras in that office. Therefore, warrantless, video-only surveillance did not constitute unlawful search and seizure, invasion of privacy, or tortious intrusion into the deputies’ privacy. Kazensky v. City of Merced 99 Another example of secret videotaping being used as a basis for imposing discipline. In Kazensky , a city installed a hidden video surveillance camera at a city shop where vehicles are repaired. The city was attempting to discover a possible cause of recurring vandalism. Although the camera did not reveal the vandalism culprit, it did reveal that two city employees were taking grossly excessive breaks and engaging in other acts of misconduct. As a result, the video tape evidence was used to justify the termination of the employees.

At an administrative hearing, remember to properly authenticate and lay a foundation for any video surveillance evidence you are planning to introduce. Otherwise, the evidence may be excluded. 100

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Disciplinary and Harassment Investigations ©2020 (s) Liebert Cassidy Whitmore 58