Call Monitoring & Recording

Sonnenschein regularly provides advice and counsel regarding implementing call monitoring and recording programs. The guidance we give is generally based on the client’s needs and our analysis of three items:

• State laws where call recording and/or monitoring will occur
• Analysis of proposed storage and data retention related to recorded calls
• Analysis of any third party access to or distribution of recorded calls

Analysis of state laws where call recording and/or monitoring will occur

Most state laws require only the consent of one party, however, at least 12 states have all-party consent provisions. Where calls are between residents of a one-party consent state and employees located in the same state, the consent of the employee is sufficient to conduct recording or monitoring. However, when callers call from states with all-party consent requirements, it is essential to obtain consent from both the caller and the employee.

When we provide advice on call monitoring and recording, we generally work with clients to determine:

• Whether the client has obtained proper express or implied consent from the employees. In this regard, we can assist with drafting the employee policies and consent forms.
• Whether the client can restrict or segregate calls from all-party consent states. In this regard, we can assist with data flows and system architecture to make sure calls are properly routed.
• Whether the client is willing to obtain consent from all callers, and, if so, to provide advice on the proper means to obtain such consent. In this regard, we can assist with reviewing and approving consent messages to ensure the implied or express consent of all callers.

Analysis of proposed storage and data retention related to recorded calls

Notwithstanding the consent of the parties, privacy interests dictate that the client takes appropriate
measures to restrict access to authorized individuals with an employment need to record and/or monitor the calls. This pertains to both privacy and security. Certain clients have deployed monitoring in a way that inadvertently has allowed nonauthorized employees, and/or former employees to gain access to the recordings for nonwork purposes. We can assist with proper implementation of privacy and security safeguards.

Analysis of any third party access to or distribution of recorded calls

To the extent a client utilizes a third-party for the recording and/or monitoring of the calls or for the handling of the recordings, the client should ensure that privacy and security protections are implemented by the third parties and that a breach of those obligations will trigger notice and indemnification provisions. We can assist with negotiation and drafting of proper privacy and security obligations and related indemnification provisions as part of the contractual arrangements with these any such third party.