Recording Calls? Five Things You Can Do to Avoid the Litigation Frenzy

By: Michelle Cohen

Restaurant chain Applebee’s has joined other businesses such as Overstock.com, Hilton, Capitol One, and Bass Pro Shops as defendants in purported class action lawsuits alleging that they illegally recorded calls to or from California residents.  In fact, plaintiffs have filed hundreds of individual and class actions in California courts under California’s various eavesdropping/call recording laws. Potential damages can include an award of $ 5,000 per violation – thus the damages in class actions could lead to multi-million dollar judgments and settlements.  Capitol One recently settled a purported class action involving residents in California and several other states for $ 3 million dollars.  Bass Pro Shops settled for $ 6 million, and Shell Oil forked out $ 2 million to resolve recent claims.

California is one of 12 states that require “two party” or “all party” consent to call recording.  The majority of states (and the federal standard) only require that one party consent.  So, in other words, if the recording party consents, that generally constitutes sufficient consent in most states.  Further, in most states, if companies announce at the outset that the call is being monitored or recorded, that announcement has been sufficient to provide at least implicit consent where the parties continue with the call following the announcement.  In the Appleee’s case, however, the plaintiff contends that she (and others) never received a notification that her call was recorded.

Applebee’s Suit Alleges Recording on Wireless Phone

Plaintiff Joneeta Byrd contends that in November 2013, she called Applebee’s customer service number from a wireless telephone. She alleges she was not aware that Applebee’s recorded the call, and that the customer service representative did not inform her that the call was being recorded.  At some point after the call, Byrd claims she learned that Applebee’s records all incoming calls.  Byrd contends that Applebee’s does not always disclose the recording to every caller. According to the complaint, “Plaintiff believes that the total number of Class members is at least in the tens of thousands and members of the Class are numerous and geographically dispersed across California.”

Byrd’s lawsuit is based on California’s Penal Code, Section 632.7, which prohibits the intentional recording of any telephone communication without the consent of all parties where at least one party is using a cordless or cellular phone.  It also provides for criminal fines and imprisonment.  It differs from, and has arguably broader coverage than another section of California’s law, Section 632, which bars the eavesdropping or recording of confidential communications (i.e., where the caller had a reasonable expectation of privacy), without the consent of all parties to the confidential communication.  While some courts have dismissed claims under Section 632, they have allowed claims under Section 632.7 to go forward – often reasoning that the California legislature intended more stringent protections for mobile phone conversations.

Hilton Hotels Decision Holds the Law Not Intended to Cover Parties

A recent decision involving Hilton Hotels may provide some relief for companies in California Section 622.7 call recording suits.  The district court (on remand) held that Section 632.7 only applies to third party recording of a wireless telephone conversation – and does not include recording by a party to the call.  The order is available here.  Specifically, the district court concluded that “[t]he statutory scheme makes it clear that these sections refer to the actual interception or reception of these radio signals by third parties and do not restrict the parties to a call from recording those calls.”  The court further ruled that Hilton had consent and that California’s legislature “did not limit the service observing monitoring of calls that it is alleged in this case.”  The plaintiff has appealed this decision.

Top “5” Recommendations When Recording Customer Service Calls

Applebee’s case and the other call recording cases serve as useful reminders on call recording.  As counsel to many companies and call centers utilizing call recording for quality control and service monitoring, we generally recommend this top 5 list:

1. Announce/Maintain —  At the outset of a call, announce the call is being monitored and/or recorded.  Maintain proof of the announcement in the event of litigation.
2. Incoming & Outgoing Covered — Remember, both incoming and outgoing calls are covered, so make sure you inform all parties – whether they have called in or your company has called them – that the calls are recorded and/or monitored.
3. Objections —  If there is an objection, consider offering a non-monitored line.  In any event, do not continue the call with the objecting party.
4. Customer Service Rep Consent Form — Upon hire, consider having customer service representatives sign an acknowledgement and agreement that their calls may be monitored or recorded. Maintain copies of these consent forms in employee files.
5. Train customer service representatives – Make sure customer service representatives can explain the call recording policy if asked.  A consistent organization-wide message that accurately states the standard procedure helps ameliorate consumer concerns, and in the event of litigation, can bolster a defense.