Mandatory tape-recording of investigative interviews not a crime

In both public and private sectors in California, full and fair investigations into alleged wrongdoing are imperative—particularly in cases of alleged harassment and discrimination. In such investigations, there is a crucial need for a clear and indisputable record of what was said in the investigatory interviews. Many employers and investigators believe tape-recording is the best means for achieving that record, but they often face a hurdle: claims that tape-recording without an employee's affirmative consent is a criminal act under California Penal Code Section 632.

Such allegations typically arise in the unionized public sector, where some unions—maintaining taping is inherently intrusive or intimidating—use threats of prosecution as a cudgel to prevent compulsory recording. Advocates for tape-recording will find comfort in the reasoning underlying a recent public-sector arbitration award that was decided squarely in favor of an employer's right to openly record investigatory interviews, even over an employee's objections.

Historical concerns and 'mutual consent'