Q: My corporate agency has been hiring agents to work from their homes. We save on office rent, and we attract some highly skilled agents who no longer wish to commute. When a client calls our office, we can transfer the call to an at-home agent as easily as we can transfer it to one in the office. We supply the phone and computer to each agent. I need to ensure that the agents are working at their computers when they are supposed to be doing so and that they are following our selling requirements during phone conversations, such as always offering a hotel and car with an airline reservation. Would it be legal to install audio and video monitoring and recording equipment in the computer and use it without the agent's knowledge? If the agent's consent is required, are there any other legal pitfalls to such recording?
A: The laws of video and audio surveillance and recording differ from state to state. Almost all states prohibit videoing inside a home without the consent of the owner or tenant.
If your employee gives consent, you can watch the video of the employee working, and you can record the video, as well. So, Skype videoing and the like are perfectly legal at all times.
For audio monitoring or recording, you need the consent of just one party to the conversation in 38 states and the District of Columbia. In the 12 other states -- California, Connecticut, Florida, Illinois, Maryland, Massachusetts, Michigan, Montana, Nevada, New Hampshire, Pennsylvania and Washington -- you generally need the consent of all parties, including your client.
So if the home office is not in one of those 12 states, you can record conversations between the at-home agent and clients with the consent of the at-home agent only. The consent should be signed by the employee; otherwise, it is easy for a disgruntled employee to deny ever giving consent.
In the 12 all-parties states, the exact provisions of the law vary from state to state, and some states' laws are vague. For example, in California, the law requires consent of all parties to recording only if the communication is "confidential," which means a "communication carried on in circumstances as may reasonably indicate that any party to the communication desires it to be confined to the parties thereto."
Whether a client has such a reasonable expectation in the home-office environment is a tough question, and reasonable minds can certainly differ. Therefore, despite the exception allowing recording of nonconfidential communication, it would be prudent to get the client's consent in California and the 11 other all-parties states.
For phone conversations, you can get the client's consent by using a recorded announcement that "some conversations may be recorded for quality-control purposes," which is why large corporations with call centers use such announcements. If you find such a practice annoying, you probably need to refrain from recording clients in any of the 12 states.
If your agency's headquarters are in a one-party state but the at-home agent is in an all-parties state, you need to obey the latter state's law, even though your recording device may be in your state. The same is true if both you and the at-home agent are in a one-party state, but your client is in an all-parties state.
Mark Pestronk is a Washington-based lawyer specializing in travel law. To submit a question for Legal Briefs, email him at [email protected].