“Can I record calls with customers?” There are good reasons to. A recording settles “you said four hundred” arguments, shows you how whoever answers your phone actually sounds, and lets you check what an answering service told a caller at 9 pm. Whether you may depends on federal law, your state’s law and, sometimes, the law of the state the customer is in. The good news is that one habit covers all of them.
The federal rule: one party is enough
The federal wiretap law makes it lawful for a person not acting under color of law to record a call “where such person is a party to the communication or where one of the parties to the communication has given prior consent,” unless the recording is made to commit a criminal or tortious act (18 U.S.C. §2511(2)(d)). So under federal law, you may record a call you are on without telling anyone. That is the “one-party consent” rule. States may be stricter, and a number of them are.
The states that want everyone’s consent
The Reporters Committee for Freedom of the Press, which keeps a state-by-state recording guide, counts about 11 states that primarily require all parties’ consent: California, Delaware, Florida, Illinois, Maryland, Massachusetts, Michigan (at least for recordings made by a third party not in the conversation), Montana, New Hampshire, Pennsylvania and Washington. It adds four more that split the rule: Connecticut and Nevada require all parties’ consent for phone calls but not in-person conversations, and Missouri and Oregon the other way around. Hawaii and Maine require it only in particularly private places. A summary is not the statute, so read your own state’s law. Here is how three of the strict states write it.
California
Penal Code §632 makes it a crime to record a “confidential communication” intentionally and without the consent of all parties, with a fine of up to $2,500 per violation, imprisonment, or both. A confidential communication is one carried on in circumstances that reasonably indicate any party wants it confined to the parties. Whether a given call qualifies depends on its circumstances, which is one more reason not to rely on it. A second section, §632.7, applies to calls involving a cell phone or a cordless phone: recording one without the consent of all parties is punishable the same way, and that section does not ask whether the call was confidential.
The bigger exposure is civil. Anyone injured by a violation may sue for the greater of $5,000 per violation or three times their actual damages, and does not have to show any actual damages to bring the case (§637.2).
Florida
Florida makes intercepting a wire, oral or electronic communication unlawful except as its chapter allows (Fla. Stat. §934.03(1)), and the exception that matters for a business is narrow: it is lawful “when all of the parties to the communication have given prior consent” (§934.03(2)(d)). A violation of subsection (1) is generally a felony of the third degree (§934.03(4)(a)).
Washington
Washington makes it unlawful to record a private communication by telephone “between points within or without the state” without first obtaining the consent of all the participants (RCW 9.73.030(1)(a)). It also writes down how consent is given, which is the most useful sentence in this article: consent is considered obtained whenever one party has announced to all the others, “in any reasonably effective manner,” that the conversation is about to be recorded, and if it is recorded, the announcement must be recorded too (RCW 9.73.030(3)). Calls of an emergency nature, such as reporting a fire, medical emergency, crime or disaster, and calls that convey threats or come anonymously, repeatedly or at an extremely inconvenient hour, may be recorded with one party’s consent (RCW 9.73.030(2)).
Calls that cross a state line
You can be in a one-party state and still owe the stricter rule. In Kearney v. Salomon Smith Barney (2006), employees at a brokerage’s Atlanta branch, in Georgia, a one-party state, recorded calls with clients in California without telling them. The California Supreme Court held that §632 reaches a confidential call secretly recorded from another state while the Californian is speaking in California, and that California law should govern. Because the firm had relied on Georgia law, the court declined to impose damages for its past conduct, but let the case go forward for an order to stop.
The Reporters Committee’s advice for interstate calls is to assume the stricter state’s law will apply. It notes that some courts apply the law of the state where the recording device is, others the state where the person being recorded is, so the person recorded may choose to sue in whichever is more favorable to them.
For a contractor this is not rare. Say a roofer based in Vancouver, Washington, records a callback to a homeowner in Portland, Oregon. Oregon allows one-party consent on phone calls by the Reporters Committee’s summary, but Washington’s law covers calls “between points within or without the state,” so the roofer should treat the call as all-party. The same goes for the landlord who owns a rental in your town and lives two states away, and for every out-of-state mobile number, since you cannot tell where the person is standing.
The announcement that settles it
The Reporters Committee says it is generally legal to record any type of conversation when the parties are warned of the recording and continue with the conversation; their consent is presumed. It calls recording the person’s spoken consent a best practice. That gives every contractor the same simple habit, whatever state they are in:
Keeping what you record
A recording of a lead call holds a name, an address, a phone number and sometimes when the house is empty. Treat recordings as customer records: keep them where only the people who need them can listen, decide how long they are kept and delete them on that schedule (How Long to Keep Business Records covers the periods for job files), and say in your website’s privacy policy that calls may be recorded (Does a Small Contractor Website Need a Privacy Policy?). If a customer reads you a card number, pause the recording or take the payment another way.
Then use them. Listening to a handful of calls a week, your own included, is one of the quickest ways to hear why jobs are lost on the phone. The rule that lets you do it is simple: tell everyone first, every time.
General information, not legal or tax advice. Rules change and vary by state; check with the agency named above or a professional for your situation.