Recording Employee Calls at Work in the US



  • We have a lot of VoIP engineers here and this comes up from time to time so having a bit of a reference for it seems logical. Employers often want to record employee phone calls and, of course, there are times that this can be done. But you always need to let the people on the call know that they are being recorded. Some people believe that different states have different laws about this, and to some extent that is true, however according to Texas - federal law from the Patriot Act overrides all state laws and all parties must always be aware that they are being recorded. This makes the law easy - it's always the same inside the US.

    http://www.twc.state.tx.us/news/efte/monitoring_employees_telephone_use.html

    Some employers concerned with excessive use of business phones for personal calls adopt policies allowing them to monitor employees' calls that are made over company phone lines. Other companies may need to monitor employees' phone calls in order to evaluate customer service within their company. Whatever the reason for monitoring calls by employees, employers need to be aware of certain legal issues. One is that an employer has the right to monitor its own phone system in order to ensure that employees are using the system for its intended purposes (this right involves the so-called "business extension exception" to the federal wiretapping law - see 18 U.S.C. § 2510(5)(a)). That means that employers have the basic right to listen in on calls, and even record the calls; however, due to the federal law known as the Electronic Communications Privacy Act (amended since by the USA Patriot Act of 2001), the employer needs to let the employees and the calling public know that such monitoring may be taking place. Another issue is that of invasion of privacy - an employer does not have the right to listen in on what are obviously private, personal conversations past the time that the nature of the call becomes clear. In other words, once an employer has established that an employee is discussing private matters over the phone, it should not continue listening after that point. The appropriate thing to do if such a call violates the employer's policy is to document the incident and treat it as a disciplinary matter. Not all situations in which private matters are overheard will constitute the common-law offense of invasion of privacy, but employers should be careful and give personal discussions a wide berth. In general, if an employer eavesdrops on a clearly private phone call and overhears personal, intimate, private details about a person's life, and a reasonable person would find that the disclosure of such information is offensive or embarrassing, the employer would be at risk in an invasion of privacy lawsuit. A final issue is that of consistency. As with any employer policy, a phone use policy should be reasonable, should strike a balance between the needs of the company and the needs of the employees, and should be enforced in a fair and consistent manner. Giving proper attention to those issues should enable a company to ensure that its phones are used in the most business-efficient way possible.



  • In another conversation someone brought up that Georgia has a "one party consent" recording law. And they do. But this is problematic for two reasons:

    • It is superseded by the Patriot Act and non-applicable therefore.
    • Local state laws only ever apply to extremely specific scenarios where every component of the call is local to that state, something that cannot be proven easily. Telephony is covered by the FCC and is a federal jurisdiction.


  • The big note about this, is that consent is not required from either party. Merely the notification that the call will be monitored or recorded.



  • @scottalanmiller said in Recording Employee Calls at Work in the US:

    In another conversation someone brought up that Georgia has a "one party consent" recording law. And they do. But this is problematic for two reasons:

    • It is superseded by the Patriot Act and non-applicable therefore.
    • Local state laws only ever apply to extremely specific scenarios where every component of the call is local to that state, something that cannot be proven easily. Telephony is covered by the FCC and is a federal jurisdiction.

    Consent is not in the patriot act to my knowledge. So a consent law is on top of a notification law (patriot act amendment).



  • @JaredBusch said in Recording Employee Calls at Work in the US:

    The big note about this, is that consent is not required from either party. Merely the notification that the call will be monitored or recorded.

    Correct, if someone wants to not consent, they just hang up or stop talking. It's secrecy that is in question.



  • @JaredBusch said in Recording Employee Calls at Work in the US:

    @scottalanmiller said in Recording Employee Calls at Work in the US:

    In another conversation someone brought up that Georgia has a "one party consent" recording law. And they do. But this is problematic for two reasons:

    • It is superseded by the Patriot Act and non-applicable therefore.
    • Local state laws only ever apply to extremely specific scenarios where every component of the call is local to that state, something that cannot be proven easily. Telephony is covered by the FCC and is a federal jurisdiction.

    Consent is not in the patriot act to my knowledge. So a consent law is on top of a notification law (patriot act amendment).

    Great point.



  • So a question I have; What if an employer has a policy that phones should be used for work purposes only, and then they catch an employee on a personal call?

    Are they allowed to enforce their employment policy without the risk of an Invasion of privacy issue?



  • @DustinB3403 said in Recording Employee Calls at Work in the US:

    Are they allowed to enforce their employment policy without the risk of an Invasion of privacy issue?

    I don't believe so. They can terminate the call if they want, but not intentionally listen in. They can fire the person, but not intentionally listen to private conversations. And remember the person on the other end is not covered by any company policy, so no amount of company policy would affect the overall situation.



  • @scottalanmiller said in Recording Employee Calls at Work in the US:

    @DustinB3403 said in Recording Employee Calls at Work in the US:

    Are they allowed to enforce their employment policy without the risk of an Invasion of privacy issue?

    I don't believe so. They can terminate the call if they want, but not intentionally listen in. They can fire the person, but not intentionally listen to private conversations. And remember the person on the other end is not covered by any company policy, so no amount of company policy would affect the overall situation.

    So as an employer, I could disconnect a call between an employee and an outside party if I find it to be personal in nature. Which goes against company policy of "No personal calls on company phones".

    Hrm...



  • @DustinB3403 said in Recording Employee Calls at Work in the US:

    @scottalanmiller said in Recording Employee Calls at Work in the US:

    @DustinB3403 said in Recording Employee Calls at Work in the US:

    Are they allowed to enforce their employment policy without the risk of an Invasion of privacy issue?

    I don't believe so. They can terminate the call if they want, but not intentionally listen in. They can fire the person, but not intentionally listen to private conversations. And remember the person on the other end is not covered by any company policy, so no amount of company policy would affect the overall situation.

    So as an employer, I could disconnect a call between an employee and an outside party if I find it to be personal in nature. Which goes against company policy of "No personal calls on company phones".

    Hrm...

    So if I can disconnect a call that I find is in violation of company policy. HR would then have to remind the employee of policy, in a written warning of what policy is, and likely disclose how long the conversation was listened too before it was determined to be personal in nature.

    Which to me stills seems like it would fall into the invasion of privacy issue.



  • @DustinB3403 said in Recording Employee Calls at Work in the US:

    @scottalanmiller said in Recording Employee Calls at Work in the US:

    @DustinB3403 said in Recording Employee Calls at Work in the US:

    Are they allowed to enforce their employment policy without the risk of an Invasion of privacy issue?

    I don't believe so. They can terminate the call if they want, but not intentionally listen in. They can fire the person, but not intentionally listen to private conversations. And remember the person on the other end is not covered by any company policy, so no amount of company policy would affect the overall situation.

    So as an employer, I could disconnect a call between an employee and an outside party if I find it to be personal in nature. Which goes against company policy of "No personal calls on company phones".

    Hrm...

    Sure



  • @DustinB3403 said in Recording Employee Calls at Work in the US:

    @DustinB3403 said in Recording Employee Calls at Work in the US:

    @scottalanmiller said in Recording Employee Calls at Work in the US:

    @DustinB3403 said in Recording Employee Calls at Work in the US:

    Are they allowed to enforce their employment policy without the risk of an Invasion of privacy issue?

    I don't believe so. They can terminate the call if they want, but not intentionally listen in. They can fire the person, but not intentionally listen to private conversations. And remember the person on the other end is not covered by any company policy, so no amount of company policy would affect the overall situation.

    So as an employer, I could disconnect a call between an employee and an outside party if I find it to be personal in nature. Which goes against company policy of "No personal calls on company phones".

    Hrm...

    So if I can disconnect a call that I find is in violation of company policy. HR would then have to remind the employee of policy, in a written warning of what policy is, and likely disclose how long the conversation was listened too before it was determined to be personal in nature.

    Which to me stills seems like it would fall into the invasion of privacy issue.

    The employee has to know already that they are being recorded.



  • @scottalanmiller said in Recording Employee Calls at Work in the US:

    @DustinB3403 said in Recording Employee Calls at Work in the US:

    @DustinB3403 said in Recording Employee Calls at Work in the US:

    @scottalanmiller said in Recording Employee Calls at Work in the US:

    @DustinB3403 said in Recording Employee Calls at Work in the US:

    Are they allowed to enforce their employment policy without the risk of an Invasion of privacy issue?

    I don't believe so. They can terminate the call if they want, but not intentionally listen in. They can fire the person, but not intentionally listen to private conversations. And remember the person on the other end is not covered by any company policy, so no amount of company policy would affect the overall situation.

    So as an employer, I could disconnect a call between an employee and an outside party if I find it to be personal in nature. Which goes against company policy of "No personal calls on company phones".

    Hrm...

    So if I can disconnect a call that I find is in violation of company policy. HR would then have to remind the employee of policy, in a written warning of what policy is, and likely disclose how long the conversation was listened too before it was determined to be personal in nature.

    Which to me stills seems like it would fall into the invasion of privacy issue.

    The employee has to know already that they are being recorded.

    Are or May be recorded / listened too.

    So a post-it note on evert phone or cubicle for example that says "All cays may be recorded or listened to" would be sufficient to prove that in a court case.



  • @DustinB3403 said in Recording Employee Calls at Work in the US:

    @scottalanmiller said in Recording Employee Calls at Work in the US:

    @DustinB3403 said in Recording Employee Calls at Work in the US:

    @DustinB3403 said in Recording Employee Calls at Work in the US:

    @scottalanmiller said in Recording Employee Calls at Work in the US:

    @DustinB3403 said in Recording Employee Calls at Work in the US:

    Are they allowed to enforce their employment policy without the risk of an Invasion of privacy issue?

    I don't believe so. They can terminate the call if they want, but not intentionally listen in. They can fire the person, but not intentionally listen to private conversations. And remember the person on the other end is not covered by any company policy, so no amount of company policy would affect the overall situation.

    So as an employer, I could disconnect a call between an employee and an outside party if I find it to be personal in nature. Which goes against company policy of "No personal calls on company phones".

    Hrm...

    So if I can disconnect a call that I find is in violation of company policy. HR would then have to remind the employee of policy, in a written warning of what policy is, and likely disclose how long the conversation was listened too before it was determined to be personal in nature.

    Which to me stills seems like it would fall into the invasion of privacy issue.

    The employee has to know already that they are being recorded.

    Are or May be recorded / listened too.

    So a post-it note on evert phone or cubicle for example that says "All cays may be recorded or listened to" would be sufficient to prove that in a court case.

    Company policy document that the employees have to read and sign an acknowledgement to yearly works well. That is what AT&T does.



  • @JaredBusch said in Recording Employee Calls at Work in the US:

    @DustinB3403 said in Recording Employee Calls at Work in the US:

    @scottalanmiller said in Recording Employee Calls at Work in the US:

    @DustinB3403 said in Recording Employee Calls at Work in the US:

    @DustinB3403 said in Recording Employee Calls at Work in the US:

    @scottalanmiller said in Recording Employee Calls at Work in the US:

    @DustinB3403 said in Recording Employee Calls at Work in the US:

    Are they allowed to enforce their employment policy without the risk of an Invasion of privacy issue?

    I don't believe so. They can terminate the call if they want, but not intentionally listen in. They can fire the person, but not intentionally listen to private conversations. And remember the person on the other end is not covered by any company policy, so no amount of company policy would affect the overall situation.

    So as an employer, I could disconnect a call between an employee and an outside party if I find it to be personal in nature. Which goes against company policy of "No personal calls on company phones".

    Hrm...

    So if I can disconnect a call that I find is in violation of company policy. HR would then have to remind the employee of policy, in a written warning of what policy is, and likely disclose how long the conversation was listened too before it was determined to be personal in nature.

    Which to me stills seems like it would fall into the invasion of privacy issue.

    The employee has to know already that they are being recorded.

    Are or May be recorded / listened too.

    So a post-it note on evert phone or cubicle for example that says "All cays may be recorded or listened to" would be sufficient to prove that in a court case.

    Company policy document that the employees have to read and sign an acknowledgement to yearly works well. That is what AT&T does.

    There is little reason to do anything other than this. Simple, effective. Anything else is just extra work.



  • @DustinB3403 said in Recording Employee Calls at Work in the US:

    @scottalanmiller said in Recording Employee Calls at Work in the US:

    @DustinB3403 said in Recording Employee Calls at Work in the US:

    @DustinB3403 said in Recording Employee Calls at Work in the US:

    @scottalanmiller said in Recording Employee Calls at Work in the US:

    @DustinB3403 said in Recording Employee Calls at Work in the US:

    Are they allowed to enforce their employment policy without the risk of an Invasion of privacy issue?

    I don't believe so. They can terminate the call if they want, but not intentionally listen in. They can fire the person, but not intentionally listen to private conversations. And remember the person on the other end is not covered by any company policy, so no amount of company policy would affect the overall situation.

    So as an employer, I could disconnect a call between an employee and an outside party if I find it to be personal in nature. Which goes against company policy of "No personal calls on company phones".

    Hrm...

    So if I can disconnect a call that I find is in violation of company policy. HR would then have to remind the employee of policy, in a written warning of what policy is, and likely disclose how long the conversation was listened too before it was determined to be personal in nature.

    Which to me stills seems like it would fall into the invasion of privacy issue.

    The employee has to know already that they are being recorded.

    Are or May be recorded / listened too.

    So a post-it note on evert phone or cubicle for example that says "All cays may be recorded or listened to" would be sufficient to prove that in a court case.

    LEgal, yes, but silly.



  • @DustinB3403 why would you be trying to disconnect calls? That is silly waste of someone's time, because the call will just be redialed.

    Live monitoring is a horrible waste of managerial resources.

    Record all calls (assuming you have the boilerplate warning when people call in so the other party knows) and review as needed. Stop listening to the recording if it turns personal and write up said person for disciplinary action.



  • @JaredBusch said in Recording Employee Calls at Work in the US:

    @DustinB3403 why would you be trying to disconnect calls? That is silly waste of someone's time, because the call will just be redialed.

    Live monitoring is a horrible waste of managerial resources.

    Record all calls (assuming you have the boilerplate warning when people call in so the other party knows) and review as needed. Stop listening to the recording if it turns personal and write up said person for disciplinary action.

    Oh I'm not, @scottalanmiller mentioned disconnecting the call.

    I'm just probing the topic matter.



  • Where I'm at currently we have policy and don't follow it (because management / ownership) don't want to follow the policy so things can be fluid.

    Which in my opinion is a bit insane. You create and follow policy so you can be more fluid, not less fluid.



  • @scottalanmiller said in Recording Employee Calls at Work in the US:

    however, due to the federal law known as the Electronic Communications Privacy Act (amended since by the USA Patriot Act of 2001), the employer needs to let the employees and the calling public know that such monitoring may be taking place.

    Willard - I guess if you want to pursue this, you need to look into this statement where the Texas lawyers are claiming that originally in the Electronic Communication Privacy Act, and later updated by the Patriot act that the Federal Government made a Federal Law (which supersedes all state laws) requiring all party notification for business phone communications (FYI, might not be limited to phone - that was a Dash addon).



  • @scottalanmiller said in Recording Employee Calls at Work in the US:

    That means that employers have the basic right to listen in on calls, and even record the calls; however, due to the federal law known as the Electronic Communications Privacy Act (amended since by the USA Patriot Act of 2001), the employer needs to let the employees and the calling public know that such monitoring may be taking place.

    So now the claim is these lines specifically mention your employer or more generically, an employer. That if you a private citizen is having a conversation with another person on a system that is not your employer's system, then you can ignore this notification requirement because it doesn't apply to you.

    Interesting.



  • @Dashrender said in Recording Employee Calls at Work in the US:

    @scottalanmiller said in Recording Employee Calls at Work in the US:

    That means that employers have the basic right to listen in on calls, and even record the calls; however, due to the federal law known as the Electronic Communications Privacy Act (amended since by the USA Patriot Act of 2001), the employer needs to let the employees and the calling public know that such monitoring may be taking place.

    So now the claim is these lines specifically mention your employer or more generically, an employer. That if you a private citizen is having a conversation with another person on a system that is not your employer's system, then you can ignore this notification requirement because it doesn't apply to you.

    Interesting.

    I feel that is because the employer would be a third party listening in on a conversation between two other parties without notification which is of course illegal.



  • @BRRABill said in Recording Employee Calls at Work in the US:

    @Dashrender said in Recording Employee Calls at Work in the US:

    @scottalanmiller said in Recording Employee Calls at Work in the US:

    That means that employers have the basic right to listen in on calls, and even record the calls; however, due to the federal law known as the Electronic Communications Privacy Act (amended since by the USA Patriot Act of 2001), the employer needs to let the employees and the calling public know that such monitoring may be taking place.

    So now the claim is these lines specifically mention your employer or more generically, an employer. That if you a private citizen is having a conversation with another person on a system that is not your employer's system, then you can ignore this notification requirement because it doesn't apply to you.

    Interesting.

    I feel that is because the employer would be a third party listening in on a conversation between two other parties without notification which is of course illegal.

    Actually no - listening in on calls on their own system is expressly allowed. To me this is specifically additional details saying that the employer can listen in, but must also notify that they are doing so.
    Definitely not illegal for them to listen in.

    Now the question is, does this notification rule stop at employers monitoring their own phone systems? Or does it extend to any and all phone communications?

    Since we don't have the law in front of us that the article is talking about, we can't know.



  • @Dashrender said in Recording Employee Calls at Work in the US:

    @scottalanmiller said in Recording Employee Calls at Work in the US:

    That means that employers have the basic right to listen in on calls, and even record the calls; however, due to the federal law known as the Electronic Communications Privacy Act (amended since by the USA Patriot Act of 2001), the employer needs to let the employees and the calling public know that such monitoring may be taking place.

    So now the claim is these lines specifically mention your employer or more generically, an employer. That if you a private citizen is having a conversation with another person on a system that is not your employer's system, then you can ignore this notification requirement because it doesn't apply to you.

    Interesting.

    That is easily the case. Or the term employer might have been added as an assumption by Texas, I'd not bank on it alone. But the statement definitely makes it only apply to "the" employer. The complication here is that it never implies this is limited to the employer, only that the context of the question is employer recording.

    Since only one person is an employee and one is a private citizen, the law basically cannot be about employers because to the one person, there is no employer. So we can safely assume (it's not written in stone but it is totally unrealistic to think otherwise) that the employer is not the factor here since the employer concept is situational.



  • @BRRABill said in Recording Employee Calls at Work in the US:

    @Dashrender said in Recording Employee Calls at Work in the US:

    @scottalanmiller said in Recording Employee Calls at Work in the US:

    That means that employers have the basic right to listen in on calls, and even record the calls; however, due to the federal law known as the Electronic Communications Privacy Act (amended since by the USA Patriot Act of 2001), the employer needs to let the employees and the calling public know that such monitoring may be taking place.

    So now the claim is these lines specifically mention your employer or more generically, an employer. That if you a private citizen is having a conversation with another person on a system that is not your employer's system, then you can ignore this notification requirement because it doesn't apply to you.

    Interesting.

    I feel that is because the employer would be a third party listening in on a conversation between two other parties without notification which is of course illegal.

    That's a tough one. Are they listening in? Or are they a third party to the conversation? How do you define one case from another? How do you define anyone in the conversation as a "party" and another as someone that needs to notify?



  • @Dashrender said in Recording Employee Calls at Work in the US:

    Actually no - listening in on calls on their own system is expressly allowed. To me this is specifically additional details saying that the employer can listen in, but must also notify that they are doing so.

    My feeling is that they can listen without notification, but must notify to record.



  • @Dashrender said in Recording Employee Calls at Work in the US:

    Now the question is, does this notification rule stop at employers monitoring their own phone systems? Or does it extend to any and all phone communications?

    What is an example of a phone system that is not the employer?



  • @scottalanmiller said in Recording Employee Calls at Work in the US:

    @Dashrender said in Recording Employee Calls at Work in the US:

    Actually no - listening in on calls on their own system is expressly allowed. To me this is specifically additional details saying that the employer can listen in, but must also notify that they are doing so.

    My feeling is that they can listen without notification, but must notify to record.

    Ok I can see that.



  • @scottalanmiller said in Recording Employee Calls at Work in the US:

    @Dashrender said in Recording Employee Calls at Work in the US:

    Now the question is, does this notification rule stop at employers monitoring their own phone systems? Or does it extend to any and all phone communications?

    What is an example of a phone system that is not the employer?

    Me a home user calls you, a home user. No business involved at all.



  • @Dashrender said in Recording Employee Calls at Work in the US:

    @scottalanmiller said in Recording Employee Calls at Work in the US:

    @Dashrender said in Recording Employee Calls at Work in the US:

    Now the question is, does this notification rule stop at employers monitoring their own phone systems? Or does it extend to any and all phone communications?

    What is an example of a phone system that is not the employer?

    Me a home user calls you, a home user. No business involved at all.

    Or me recording a call to a business... I'm not a business so I don't have a business phone system to record on.