Recording Law for Employers & Businesses in California

California law makes it illegal to record any ‘confidential communication’ unless every person taking part in the conversation agrees first. This rule comes from California Penal Code § 632, which defines a ‘confidential communication’ as any exchange where someone has an objectively reasonable expectation that the conversation itself isn’t being overheard or recorded. The statute says: ‘"Confidential communication" means any communication carried on in circumstances as may reasonably indicate that any party to the communication desires it to be confined to the parties thereto, but excludes a communication made in a public gathering or in any legislative, judicial, executive, or administrative proceeding open to the public, or in any other circumstance in which the parties to the communication may reasonably expect that the communication may be overheard or recorded.’ If your employee records a customer without consent, or if a customer records an employee without consent, you may have broken the law. The only exceptions are narrow ones like conversations in a public gathering or open government meetings, and those don’t cover most workplace interactions.

California treats hidden video recording differently than most states. In People v. Gibbons, a court ruled that secretly videotaping someone during a conversation can violate § 632 even if the camera doesn’t capture clear audio. The judges said the law covers situations where the video itself captures the communication, meaning the statute is not purely an audio-only restriction when video captures a communication. So if your employees wear smartglasses that record video of customers during a conversation, you must make sure customers know they’re being recorded or get their consent first. The same rule applies to customers recording employees with hidden cameras.

A private conversation inside a home is the strongest example of a ‘confidential communication’ under § 632. California courts have applied the law to hidden recordings made in bedrooms and other private spaces. Penal Code § 647(j)(1)–(3) criminalizes secretly viewing or recording a person inside a bedroom, bathroom, changing room, or similar space where they have ‘a reasonable expectation of privacy,’ and § 647(j)(3)(B)(i) expressly states that the defendant being a ‘cohabitant, landlord, tenant, cotenant, employer, employee, or business partner’ of the victim is NOT a defense. Civil Code § 1708.8(l)(1)(D) further singles out ‘any activity that occurs on a residential property under circumstances in which the plaintiff has a reasonable expectation of privacy’ as protected ‘private, personal, or familial activity.’ So if your business involves entering homes—like home repair, cleaning, or healthcare—you must treat recordings inside those homes as off-limits without clear consent.

California Penal Code § 148(g), added by SB 411 (Stats. 2015, ch. 177, approved by the Governor Aug. 11, 2015), eff. Jan. 1, 2016, provides: ‘The fact that a person takes a photograph or makes an audio or video recording of a public officer or peace officer, while the officer is in a public place or the person taking the photograph or making the recording is in a place he or she has the right to be, does not constitute, in and of itself, a violation of subdivision (a), nor does it constitute reasonable suspicion to detain the person or probable cause to arrest the person.’ This means your employees can record interactions with police during public duties without violating the wiretap law.

California’s privacy law treats voice recordings and voiceprints as ‘biometric information,’ which is a category of ‘sensitive personal information’ under the California Consumer Privacy Act as amended by the California Privacy Rights Act (CCPA/CPRA). Under the CCPA/CPRA, businesses must inform consumers, at or before the point of collection, of the categories of sensitive personal information collected, the purpose(s), and the retention period or criteria used to determine it. Consumers also have the right, at any time, to direct a business to limit use of their voiceprints to only what is ‘reasonably necessary and proportionate’ for specified permitted purposes. Regulation § 7027(m) exempts a business from even displaying the opt-out link when the sensitive personal information is used only ‘to perform the services or provide the goods reasonably expected by an average consumer who requests those goods or services’ or where the information is not processed to infer characteristics about the consumer. There is no requirement of prior written consent, no mandated public written retention/destruction schedule, and no per-capture statutory-damages exposure merely for collecting the voiceprint without consent. A private right of action exists only where a business’s failure to maintain reasonable security procedures leads to unauthorized access/theft/disclosure of specifically enumerated ‘nonencrypted and nonredacted personal information’ as defined in § 1798.81.5(d)(1)(A), and statutory damages are $100–$750 per consumer per incident or actual damages, whichever is greater, after a 30-day notice-and-cure opportunity.

Imagine your retail store gives employees smartglasses that can record video and audio during customer interactions. Under California law, you can’t turn on the recording feature unless you first tell customers they’re being recorded and get their consent. If a customer refuses, the employee must disable recording for that interaction. You also can’t secretly record customers in fitting rooms, restrooms, changing rooms, or other private areas—those are treated as highly confidential. For voiceprints used to identify employees, you must inform consumers, at or before the point of collection, of the categories of sensitive personal information collected, the purpose(s), and the retention period or criteria used to determine it. If a consumer directs the business to limit use of their voiceprint, the system must honor that request.