On March 3, 1991 a Los Angeles man led California Highway Patrol and later Los Angeles police on a high speed chase that ended in the driver and his passengers trapped in a corner. The passengers surrendered and an altercation occurred between the Los Angeles police officers and the driver. The driver, Rodney King, was viciously beat with batons and kicked by the police officers until subdued and arrested. The officers were acquitted of excessive force charges by a state court which triggered the Los Angeles riots in 1992.
Subsequent lawsuits brought by the Department of Justice and Rodney King followed. Rodney King became a lightning rod for an intense nationwide debate over police brutality and the dangerous situations police officers face. Mr. King became this lightning rod not merely because of the terrible events of that night but because there was video. The video spread through the media like wildfire.
In the time since the Rodney King video we have seen hidden camera footage and citizen recordings become important evidence in lawsuits. This is certainly true in employment lawsuits in which employees bring in videos, audio and pictures from the workplace as evidence of hostile work environments, wage violations and other unlawful employment acts. Today’s post will address some of the ways you can record evidence of unlawful conduct at work.
Texas law on recording video
Texas law and federal law on the subject of recording video, audio and photographs first arose in the early to middle twentieth century. Early recording devices included audio recording devices and cameras.
A critical concern with recording devices was violating the privacy of the individuals captured by the recording. The nature of the equipment available drove a distinction in the law between visual and auditory recordings. In the earlier part of the twentieth century there was very little consumer-available video and photography equipment. What was available was large and easily identifiable.
It was easy to avoid video or photographic equipment and have private conversations. Unlike audio, merely capturing a picture of people talking said very little about the content of the conversation and less privacy violation can occur simply by photos.
Audio equipment, on the other hand, was harder to avoid. Telephone conversations could be recorded by attaching equipment to the phone lines or listening outside of phone booths where the parties to the conversation could not know their conversation was no longer private.
Similarly, microphones are easy to hide. As a result of these technical distinctions the law also drew distinctions. Visual recordings are subject to less restrictions than audio recordings but it is important to know the limits on any type of device.
The laws governing photos and videos are generally the same although video often contains audio. Recording videos and photography is generally lawful. There are some exceptions. Recordings in restrooms, changing rooms, locker rooms and other places where there is a similar expectation of privacy are not lawful. It is unlawful to record in these places when the intent is to violate privacy or for sexual gratification.
Texas law on recording audio
The laws governing audio recordings are more complex. Recording purely audio is only lawful if the recording party is a party to the conversation being recorded. This is true for Texas law and federal law. Texas and federal law follow a “one party consent” rule.
This means one party to the conversation must consent to the recording. That prohibits recordings by hiding or leaving behind audio recording devices to capture conversations without the recording party.
Recordings, photos and HIPAA
Additionally, other privacy laws may limit the lawfulness of any type of recording in the workplace. The Health Insurance Portability and Accountability Act (HIPAA) establishes privacy protections over health and medical information. These protections prohibit certain people from recording and sharing another individual’s health or medical information.
Other laws limit sharing information from third parties in the workplace include school records for minors and financial information.
The combination of these laws allows employees to record evidence in the workplace in many cases. Employees should opt for video evidence when possible. If only audio is recorded it can only be when the employee is involved in the conversation. They can take pictures.
Pictures may be particularly useful for obtaining clear images of documents, signs and other physical evidence.
Employees should avoid any recording or images taken in restrooms or where people change clothes. Employees working in medical, dental, education and financial fields should be cautious about recording information where information about customers or clients are present.
Texas employment attorney
The employee should not share workplace recordings publicly or with the employer until the employee talks with an employment lawyer. An employment attorney can review the content to look for information that may be unlawful. The employment lawyer can also discuss the underlying situation and whether the employee should share recordings with the employer. Although it may be lawful to make the recordings the employer does not have to permit it. It may have grounds to take disciplinary action for making the recordings.