So You Want To Record Your Employees’ Phone Calls…
Whether the purpose is to monitor customer satisfaction or to investigate an employee’s suspicious behavior, employers need to be mindful of federal and state laws applicable to recording phone calls.
Every so often we are contacted by an employer who wants to record its employees’ phone calls. The employer’s reason for recording employee phone calls may be to make sure its employees are following the company script. Or, the employer may suspect an employee of behavior that violates company policies and wants to record that employee’s phone calls as part of its investigation. Regardless of the purpose for recording, employers must comply with both federal and state laws (including states other than Idaho) in order to lawfully record its employees’ phone calls.
Idaho’s law applicable to recording phone calls is the Idaho Communications Security Act. Enacted in 1980, this law is based on the federal Omnibus Crime Control and Safe Streets Act of 1968, which criminalizes the interception of certain communications. Idaho’s Communications Security Act makes it unlawful to intercept a phone call. Idaho has adopted the two federal exceptions to this general rule. A phone call may be lawfully recorded when: 1) at least one party to the call has given his or her prior consent to the interception; and 2) the interception was made in the “ordinary course of business.”
With respect to the second exception, federal courts have interpreted “ordinary course of business” to mean that an employer can record a phone call only so long as is necessary to determine whether the call is business or personal. Business calls may be recorded. If the call is personal, the recording must stop as soon as possible. Thus, the “ordinary course of business” exception does not permit an employer to record all employee phone calls. The ordinary course of business exception does, however, permit an employer to record calls without obtaining any party’s prior consent.
The consent exception is broader with respect to the content of conversations that may be recorded. An employer can record an employee phone call, regardless of whether it is business or personal, if at least one party to the phone call consents to the recording. Consent, however, cannot be implied, such as by a general “threat” from an employer that it may record employee phone calls. Nor can consent from an employee be found where an employee should have expected its employer to record his or her phone calls. The best practice is for an employer to obtain the actual consent of its employees to the recording of phone calls, such as with an employee handbook provision creating a general policy of recording phone calls that the employee must sign.
Not all states permit recording when only one party to the call consents. California and Michigan, for example, require ALL parties to a conversation to consent to recording. The fact that only some of the parties to the call are present in a two-party consent state does not change the requirement that all parties must consent to recording. In fact, California courts have explicitly applied their two-party consent law to out-of-state companies recording phone calls with California residents in that state at the time of the call. California’s law may be satisfied with a disclaimer at the beginning of a phone call, such as “This call may be recorded for quality assurance.”
The actual consent of the Idaho employees to the recording of phone calls may be sufficient to permit the recording of calls with Idaho residents, but all parties to a call must consent to recording in certain states. Thus, Idaho companies that conduct business in other states should be aware of those states’ laws regarding recording phone calls. Consult with your attorneys before initiating a program to record your employees’ phone calls to ensure your compliance with all applicable laws.
Jeff Sykes is an attorney with the law firm McConnell Wagner Sykes + Stacey PLLC. He represents businesses and individuals with legal problems and concerns involving contracts, construction, insurance, employment, and real property matters.
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