Introduction

Scott Gerber, the Communications Director for California Attorney General Jerry Brown, resigned in early November after it was revealed that he had secretly recorded telephone conversations with reporters. Neither Brown nor any other attorneys in the office were aware Gerber was recording the calls without permission.1 Gerber explained in his resignation letter: “My purpose wasn’t to play gotcha but simply to have an accurate record of official, on-the-record statements about matters of public concern.”2 Whatever Gerber’s purpose, however, recording private conversations without the consent of all parties is illegal under California law and violators are subject to both criminal and civil liability.

This Commentary provides an overview of the federal and state regulations governing the legality of monitoring confidential conversations and the measures that employers should take to ensure compliance. Special attention is paid to California privacy law. While no action has yet been taken against employees in the Attorney General’s office, Gerber’s misstep provides a stark reminder to employers of the privacy rights implicated by monitoring or recording workplace conversations.