Legal Question in Business Law in California

A co-worker is harassing(non-sexual) me verbally and impeding my work. However, he only does it when we are alone and he acts normal when others are around. Can I record without his consent when we are alone in the work place to prove that he has been verbally abusive?

If I can not record without his consent in this situation and I report him to my superiors, but he denies everything, what can I do legally? And can he file a lawsuit against me for damaging his character and reputation?

Asked on 8/27/13, 12:28 pm

2 Answers from Attorneys

Terry A. Nelson Nelson & Lawless

Report it to the company and demand remedy. That is what the law says you are supposed to do. If you fail to report it, you have no grounds to sue. If they fail to correct after your report, then you may have grounds for a lawsuit.

You face no risk of him suing you about 'reputation', as you are legally protected in making your complaint to the company. Don't discuss it publicly with others to avoid 'slander' allegations.

Recording someone without their consent is generally improper and the recording would not be usable in court. However, there are exceptions to the rule; they involve 'proving illegal behavior' type things. I would argue that catching and proving sexual harassment clearly fits that exception. So, if you think you can record, do so, but do not share that information with anyone but your attorney's guidance.

If you are serious about pursuing this legal action, feel free to contact me. I've been doing these cases for many years.

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Answered on 8/27/13, 1:55 pm

Keith E. Cooper Keith E. Cooper, Esq.

If the recording is of a "live" conversation, only one party to the conversation (you) needs to consent. The previous answer is confusing the recording of telephone conversations with the recording of in-person conversations. For a telephone conversation, all parties must be informed and consent before a recording is made, or you are in violation of federal law. Even if a court ruled the recording of the live conversation were not admissible as evidence in court, the recording might be useful for demonstrating the behavior to your manager.

Your first step, of course, should be to tell the co-worker to stop harassing you. Perhaps he is not aware that you consider his remarks harassment. If he doesn't comply, then report him to your manager. Managers are required to take such matters seriously, and failing to do so exposes them and the company to liability. Strategically, you want to "get there first" to preempt his making a complaint against you, so you probably don't want to warn him that you plan to make a complaint to your manager.

The preceding is intended as general information only and does not constitute legal advice. The information given may or may not apply to your situation.

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Answered on 9/09/13, 4:33 pm

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