Mark Pestronk
Mark Pestronk
Q: I have several questions about recording phone conversations. When I call a big company, such as a major bank, why do they start with, "This call may be recorded for quality assurance purposes" or the like? Is there some legal exception for quality assurance? If this message is a legal requirement before recording a call, do small companies like mine have to comply? I understand that the recording laws are different in each state, so if a client calls from another state or vice versa, whose law do we have to obey?

A: The basic concept behind the conversation-recording laws is that you need consent to record conversations and commit a crime if you fail to get it. However, not only is each state's law different from those of the other states, but the federal government also has its own law about recording a phone conversation without consent.

There are two kinds of laws. Thirty-nine states, the District of Columbia and the federal government have one-party consent laws. This means that you need to only get your own employee's (or independent contractor's) consent to record. On the other hand, 11 states require the consent of all parties: California, Connecticut, Florida, Maryland, Massachusetts, Michigan, Montana, Nevada, New Hampshire, Pennsylvania and Washington. Illinois used to be an all-party state, but its law was held unconstitutional in 2014.

The announcement you cited is aimed at the residents of the 11 all-party states. Courts have held that if a consumer stays on the line after hearing the message, he has consented to being recorded.

It is not necessary to put the words "quality assurance" or any other recording rationale in the message. It would be fine to announce, "This call is being recorded."

These laws apply to all businesses, large and small. They apply to individuals, too, so that if a client calls your agency and records the call without permission in one of the 11 all-party states, he is committing a crime.

If like me, you find the announcement at the beginning of each call to be annoying, you will be interested to know that there are other ways to obtain consent. For example, if your phone system tracks new client calls, you can program the system to make an announcement only the first time someone calls, and you can even limit the announcement to callers from one of the 11 states. Under the law, the client has then consented to being recorded for all future calls.

Finally, it is not even necessary to use a recording in order to obtain consent. If you require each new client to complete a profile form, you can add a sentence such as, "By signing below, I agree that ABC Travel may record my telephone calls for quality and training purposes" or the like.

You can also put a notice in an email footer, such as "ABC Travel records telephone calls for quality and training purposes. By calling us or accepting our calls, you consent to such recording."

By now, you will probably have guessed that if your agency is in one of the 39 states, and you get a call from someone in one of the 11 all-party states, you need to follow the latter state's laws, according to court precedents.

JDS Travel News JDS Viewpoints JDS Africa/MI