Are You Breaking the Law by Recording Phone Calls?

Many of today’s business phone systems have call recording functionality. In fact, this is often a standard feature with voice over IP (VoIP) phone systems, which transmit audio over data networks. Call recording is most commonly used for quality assurance and training purposes, but it also enables businesses to improve customer service, settle disputes, reduce errors, and provide more effective performance reviews.

However, call recording can get you into hot water if you don’t know the rules. Florida is one of a dozen states with an all-party consent rule. In other words, recording a phone conversation without the consent of all parties involved is illegal. It doesn’t matter if you’re in Florida and the person you’re speaking with is not, or vice versa. If any person on the call is in Florida, Florida’s rule applies. To gain consent, you simply have to state that the call may be recorded. A party can hang up if they don’t want to be recorded, so verbal affirmation is not required. If they stay on the line, consent is implied under Florida law.

Because call recording is relatively easy with modern phone systems, many organizations record all calls. The problem with recording everything is that you’re recording employee phone calls, not just customer calls. While it’s permissible to monitor or record calls with customers, federal law prohibits monitoring of an employee’s personal calls unless the employee has been explicitly advised not to make personal calls from the particular phone.

It’s relatively easy to start an incoming call with a recording that says the call will be recorded, but you’ll need to train employees to inform parties of call recording during outbound calls, or calls made directly to an employee’s extension bypassing the notice. The information recorded and stored could be used against the recording organization, and the cost to produce recordings for use as evidence in a lawsuit could be significant. You could also run into compliance issues. For example, if you record a call that includes a person’s credit card information, you may be in violation of Payment Card Industry (PCI) regulations.

What happens if the call is disconnected or transferred? Does consent remain in place when the call resumes? In a recent case in California, a man filed a class action against Quicken Loans, arguing that he should have been told again that the call was being recorded after he was disconnected. In this case, the court ruled that the consent obtained at the outset of the original call applied to the entire interaction. However, because the specific circumstances of this case may not apply to your situation, it’s a good idea to err on the side of caution and get consent at every step.

Organizations can balance the business benefits and risks of call recording by selectively recording phone calls. For example, it may make sense to limit call recording to customer service and sales calls, the phone lines of certain employees, or high-value conference calls that may need to be referenced in the future for strategic purposes. Of course, consent needs to be obtained regardless of the nature of the call. Although implied consent is sufficient in the eyes of the law, some companies will ask the party to confirm consent after recording has begun so they have evidence of consent.

If you’re going to record calls, leave nothing to chance. Employees should be properly trained and formal policies developed for obtaining and verifying consent.