An SMB’s Helpful Guide on How to Legally Record Business Calls

Small-to-medium businesses need to make many calls. Every day there are calls to handle; incoming, and outgoing. Crucial information is sometimes handled on the phone, so recording calls may be necessary. Doing so has legal, privacy, and cybersecurity implications. Thus, it is vital to understand the legalities around call recording.

Before creating your call recording policies, consult your legal team. With that disclaimer out of the way, let’s get a basic understanding of how to record business calls legally.

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Why would you need to record calls?

Before we examine the legalities of recording calls, let’s investigate some reasons for doing so.

• Verbal contracts: Businesses often make agreements on the phone. A written contract is always preferable but not always practical every time. Recording calls protects your business, and the client. This goes for dealing with B2B vendors also. Any time a cost is agreed or delivery date is promised, it’s good practice to have a record.
• Training purposes: We’ve all heard the phrase “this call will be recorded for training purposes.” That’s because customer service trainers can make good use of the information. They can shine a light on a job well done. They can also point to what not to do. Learning from recorded calls can contribute to the formation of performance marketing strategies.
• Risk mitigation: A record of conversations can protect your business from bad faith litigation. Evidence of what was, or was not said, can prove helpful in avoiding legal risk. Also, there are instances when recording a conversation will avoid financial risks to your company.

Consent

An issue that differentiates the legality of recording across territories is consent. Requirements can vary from country to country, and, in the US, from state to state. In the USA, federal legislation dictates that as long as all parties are aware of the recording, one-party consent is legal. State laws take precedence over federal laws, so your responsibilities can vary.

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One-party consent

In jurisdictions with one-party consent laws, recording calls only requires a single person to give permission for it to be legal. Nonetheless, it’s always good practice for a business to declare its intention to record a call. It’s also good manners. If you’re using a customer service automation solution, make sure messages inform customers that calls may be recorded.

In the US, the following states only require one-party consent:

• Alabama
• Alaska
• Arizona
• Arkansas
• Georgia
• Hawaii
• Idaho
• Indiana
• Iowa
• Kansas
• Kentucky
• Louisiana
• Maine
• Minnesota
• Mississippi
• Missouri
• Nebraska
• New Jersey
• New Mexico
• New York
• North Carolina
• North Dakota
• Ohio
• Oklahoma
• Rhode Island
• South Carolina
• South Dakota
• Tennessee
• Texas
• Utah
• Virginia
• West Virginia
• Wisconsin
• Wyoming

You only require one-party consent in the District of Columbia too.

Multi-party consent

Also known as two-party consent, permission to record calls must be explicitly granted. This extends beyond client calls; if your business makes many sales calls, you need your sales reps' permission to record a call. Use a contract generator to draw up agreements for your employees to sign. 

Multi-party consent is required in the following states:

• California
• Connecticut
• Delaware
• Florida
• Illinois
• Maryland*
• Massachusetts*
• Michigan*
• Montana
• New Hampshire
• Pennsylvania
• Washington

*These states have special provisions. Consult with your legal counsel on how your business is affected.

Nevada, Colorado, and Oregon legislation on this matter is open to interpretation. Tread carefully in these territories, and lean on your legal team.

Calls across state lines

So what if your business is based in Texas, but you wish to record a call made to Florida? Texas is a one-party consent state, whereas Florida requires multi-party consent. Business done across state lines falls under federal jurisdiction. However, state courts may not accept this, and your business may face legal action if found to violate state laws.

The best approach is to comply with the strictest law that may apply to protect your business. This will ensure you are fully covered and legally compliant.

International

Some small-to-medium companies conduct business outside of the US. If you wish to record calls internationally, laws are yet more complex. Businesses operating across borders benefit from having an international law expert on their team. Consult with them before recording any calls with individuals abroad.

Let’s look at the law in some territories outside the US:

• EU: Any data collected from EU citizens are protected under the General Data Protection Regulation (GDPR) laws. Recorded calls fall under this legislation. An organization or individual can only collect data for legitimate, and specific purposes. It must also be secure and only stored for as long as necessary. Consent must be sought, and must be unambiguous.

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• UK: Since Brexit, the UK has diverged from EU legislation in many ways, and continues to do so. However, GDPR is currently still the law of the land. Thus, treat UK calls the same as you would with the European Union.
• Canada: Canada requires multi-party consent for the recording of calls. Also, all parties must be informed of the reason for recording.
• Australia: The Telecommunications Interception and Access Act (1979) outlaws call recording without consent. Like the US, Australia's individual states can make specific legislation. Therefore, engage with your legal counsel when considering recording calls down-under.

Consequences

Violating call recording laws can have significant ramifications. It could lead to criminal charges resulting in fines or even jail time. Any business found to have broken the law can suffer reputational damage as a result.

It’s good practice to establish a call recording policy. Work with your legal team to draw up policies for your employees to follow. Compliance training for your employees will help your business avoid legal trouble.

Tips for recording calls legally

Now that you know the legal pitfalls associated with call recording, let’s look at best practices.

Establish a call recording policy

Together with your legal team, you should devise an appropriate policy for call recording. This will depend on where your business is calling, and the call origin. Research what legislation applies to you, and form a policy with that in mind.

Be sure that your policy covers incoming, and outgoing calls. Also, consider how you wish to handle unscheduled calls. You must ascertain the call's origin to know what kind of consent is required.

As your business grows, you may start working in new jurisdictions. If any changes to call recording processes occur, get together with your legal counsel to review the policy. 

Decide when you need to record a call. This will be specific to your business. We’ve looked at some examples of when it would be helpful. Your business may need to record when others don’t, and vice versa.

Once your policy has been established, you’ll need to ensure all your teams are familiar with them. Conduct training either in person or using virtual team communication tools. The training should spell out the consequences of non-compliance for the business, and individuals.

Be transparent about call recording

As part of your training program, get your employees to use key phrases to inform parties that you'll be recording. Tailor these phrases to your unique business needs, and the jurisdictions in which you’ll use them.

Here are some examples for one-party consent jurisdictions:

• “This call will be recorded for training purposes”
• “We record our calls for our records”
• “Calls are recorded for quality assurance”

Phrases will have to be altered for multi-party consent jurisdiction:

• “We would like to record this call for training purposes. May we have your permission?”
• “We like to keep recordings of calls for our records. Is that ok?”
• “Calls are recorded, with your consent, for quality assurance. Do you give consent?”

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In both one-party and multi-party jurisdictions, parties are informed of the recording, and given a reason. In multi-party consent jurisdictions, you must make a clear request for permission.

Retain call recordings only for as long as is necessary

The recording, and storing of calls are also governed by data privacy laws. In the event of a data leak, businesses can suffer punishing fines, and reputational damage. You’ll want to avoid this.

Record only what’s truly beneficial to your company. It’ll make the task of reviewing, and deleting unnecessary recordings easier. You should set up a review, and deletion process as part of your call recording policy.

Embrace technology

The days of recording calls on tape reels are long gone. Businesses now take advantage of Voice over Internet Protocol (VoIP) services. Providers use cloud-based technology to power features such as multi-line phone systems. Many of these services offer call recording as part of their packages.

If you already use a VoIP provider, ask them what they can do to help with your recording needs. When selecting a VoIP provider for recording purposes, find out how they handle consent. Find a provider with your legal department that helps you avoid issues with the law.

Last call

It can sometimes be helpful, and necessary to record calls. Doing so irresponsibly can expose small-to-midsize businesses to legal troubles. Use the tips above to ensure legal compliance. Developing a robust call recording policy will protect your company. Always consult with your legal team when altering your policy.

NB

• One-party consent vs two-party consent - different between US states
• SMB = Small and Midsize Business