Smart phones have made it so much easier to record and secretly record conversations that many more people are doing it these days.  At work, some people believe if they can record a conversation of their supervisor or others discriminating or retaliating against them that the recording will protect their job or will be strong evidence for a lawsuit. In some unusual, non-work situations, e.g. the outrageous remarks Donald Sterling made to his mistress V. Stiviano, secretly recorded conversations can cause extreme embarrassment and severe repercussions to the person who made them.

Secretly recorded conversations usually aren’t helpful for one important reason:  Under California Penal Code section 632 recording a private conversation without the permission of all those involved is a crime. Section 632 also says an illegal recording can’t be used in a lawsuit.  The harasser or discriminator might even sue the victim who made such a recording for invasion of privacy!

If you want evidence of illegal conduct, write it down.  Keep a journal that lists the dates and time of what happened to you.  Or better yet, look for evidence of the harassment or discrimination in the emails or other documents you receive.  You can also complain in writing to a manager or use your employer’s complaint procedure if you think you can do so without suffering retaliation.

But unless the law changes, secretly recording a conversation may create more problems than it solves.

These days many employers require their employees to sign an arbitration agreement to get or keep their jobs.  An arbitration agreement is a contract to skip going to court and have a private judge settle any lawsuit the employee brings.  In other words, the employer is forcing the employee to give up his or her constitutional right to a jury trial as a condition of employment.  Unbelievably, this is completely legal!

But it gets worse.  Once the case goes to arbitration, the employer can stop the employee from ever getting to an arbitration hearing by refusing to pay the arbitrator.  Of course, the employee can try to go back to court, but by then he or she will have wasted a year or two in arbitration and likely won’t get a trial date in Superior Court for another year.

The good news is that some employers are allowing employees to opt-out of arbitration agreements.  Is this because those employers want to support and defend the constitution?  No.  If they wanted to do that they would forget about arbitration all together.  Employers who do this want to strengthen their position to force employees to arbitrate.  And it works.  Recently the US 9th Circuit Court of Appeals, in a case called Johnmohammadi v. Bloomingdale’s, which covers California, forced a Bloomingdale’s employee to arbitrate her claims because she had signed an arbitration agreement, which allowed her to opt-out of the agreement if she had wanted to.  If she had chosen to opt-out of the agreement, she would have been able to take her claims to court, and she could have served as a representative for a whole class of employees and help them bring their claims as well.  Instead, she was forced to bring only her claims in private arbitration.

So if your employer gives you the choice to sign an arbitration agreement, just say thanks, but no thanks and keep your right to a jury trial in a court.