TGI Friday's, Baja Fresh, Casino Royale, Teva, AMF Bowling, AeroMexico and Miele are all facing recent class action lawsuits for violating California call recording laws. California is a "two-party" consent state, meaning it is unlawful for any party to record or eavesdrop on a conversation without the consent of the other party.  Aside from California, similar call recording states include Connecticut, Florida, Hawaii (sort of), Illinois, Maryland, Massachusetts, Montana, New Hampshire, Pennsylvania and Washington.  While most call recording lawsuits have been filed in California, there are risks related to all of these "two-party" or "all-party" consent states.  Other states are generally considered "one-party" consent states, meaning since your phone agent is on the line and they consent to recording, you may record/monitor.

Call recording laws apply to inbound, outbound, marketing and non-marketing calls alike.  Thankfully, courts have routinely held that by disclosing that the call may be monitored/recorded at the outset, participants who remain on the line without objection have impliedly consented to the recording.  Do not bury the call recording disclaimer deeper in the script as you don't want to risk recording part of the call before the disclaimer is made.  Also, do not rely merely on clicking/beeping or other background noises to sufficiently notify the recipient about the recording.  You need to make an express disclaimer.  Finally, if you rely on an automated "whisper" intro to make the recording disclosure, ensure that the caller cannot circumvent the disclaimer by pressing a button early in the automated script. 

Because it is often impossible to know for certain where the consumer is standing when they answer your call (or call you), the best practice is to always give the recording disclaimer if you record any of your calls.  This eliminates the risk of error present when trying to only give the disclaimer to residents of "two-party" states.  Also, on web forms meant to capture consent or drive inbound calls, you should add a call recording disclaimer to those pieces as well.  Potential fines are significant.  In California, for example, fines can total $5,000 per call.

Monday, June 5, 2017







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