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Recording Conversations

My business has been increasingly relying on phone-based customer service. Can I record my employees’ conversations to ensure they’re doing a good job?

Businesses record communications for many different reasons, including keeping tabs on employees and for quality control. Occasionally, a party to a conversation records it to prove that someone else is lying.

There are several different laws that govern the legality of recording conversations. The first is the federal wiretapping law, which prohibits the interception of a wire, oral, or electronic communication, unless one of the parties to the communication consents.

California’s Privacy Act is far more restrictive. It provides that anyone who secretly records an in-person or telephonic conversation without consent of all the parties to the communication is guilty of a crime. Violators may be punished by a fine of no more than $2,500, up to one year imprisonment, or both. The fine increases to $10,000 for subsequent offenses, and can include an additional one-year jail sentence. Victims can also seek civil penalties of the greater of $5,000 or three times the amount of actual damages for each recorded conversation.

To be liable under this law, you don’t even have to disclose the recording to a third person. Simply recording a conversation, even if never disclosed or used, is enough to give rise to the penalties described above.

If you are involved in a dispute, and think you have a smoking gun in the form of a recorded conversation, think again. In California, no evidence obtained as result of eavesdropping upon or recording a confidential communication is admissible in any judicial, administrative, or other proceeding.

Recording a conversation can also violate common law invasion of privacy laws.

The moral of the story is never record a conversation with someone in California without obtaining consent of each of the participants of the conversation.

An employee may consent expressly or impliedly, but I recommend you obtain express consent from your employees in writing before you record anything. The best approach is to formulate a clear policy regarding all forms of surveillance that you may use. Discuss that policy with your employees and have them sign off on the policy in writing.

The other half of the solution is to obtain consent from the customers who are calling your business. Some businesses simply use a prerecorded message to advise the caller that their call may be monitored. If the caller remains on the line, their consent is implied. You could also have your employer tell the customer that the call may be monitored, or have the customer consent to recording.

Mary Luros is a business law attorney with Hudson & Luros, LLP, in Napa, and can be reached or 418-5118. The information provided here is not intended as legal advice, nor does it form an attorney-client relationship with the author. The author makes no representations as to the reliability or accuracy of the above information. In a perfect world we wouldn’t need disclaimers — or attorneys.

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