A new California Supreme Court ruling highlights a state law that prohibits the secret tape-recording of phone conversations. Although the case didn’t involve an employer-employee dispute, it has important workplace implications. We”ll explain the decision and provide guidelines on when you can legally monitor employee phone calls.
Wife Allegedly Plots To Kill Sick Husband
The facts of the new case read like a soap opera. John Flanagan, a wealthy Southern California mortuary owner, planned to leave his entire estate to his wife Honorine on his death. But when John developed prostate cancer, Honorine told her manicurist that she would pay someone $100,000 to kill John and that she was injecting John with water instead of his prescribed cancer medication. The manicurist told John’s son Michael that his father’s life was in danger.John then changed his will, excluding Honorine and leaving everything to his children. But when John and Honorine reconciled, he wrote Honorine back into the will. John died the following year.
400+ pages of state-specific, easy-read reference materials at your fingertips—fully updated! Check out the Guide to Employment Law for California Employers and get up to speed on everything you need to know.
Son Accuses Father’s Wife Of Illegal Tape-Recording
John’s son Michael then sued Honorine, accusing her of taping his phone conversations with John after the couple reconciled. He relied on a California law that prohibits the recording of confidential communications, whether by phone or face-to-face. Honorine admitted she recorded calls between Michael and John with a voice-activated tape recorder on their home phone. A jury found Honorine illegally recorded 24 phone calls, and it awarded Michael $120,000. But a Court of Appeal said most of the conversations weren’t confidential because Michael should have expected that the content of the calls would be revealed to someone else. Michael appealed.
When Conversations Are Considered Confidential
The California Supreme Court found that the appeals court applied the wrong standard to determine whether the taped conversations were confidential. The court explained that a conversation is confidential under the tape-recording law if either party has an objectively reasonable expectation that the conversation isn’t being overheard or recorded. Whether the party expects that the call’s contents might later be revealed to other people is irrelevant. Thus, the court returned the case to the appeals court to determine which of the 24 conversations Honorine taped were confidential.
Strategies For Legal Monitoring
The penalties for illegally recording or eavesdropping on confidential conversations, whether in personal or work-related situations, are steep. Criminal violations carry a fine of up to $10,000 and a prison sentence of up to one year. What’s more, a victim of illegal recording can also sue for damages.This new case doesn’t mean you can’t monitor employee telephone calls, but it does reinforce the rule that you can’t do it secretly. Many employers listen to calls placed to customer service representatives, salespeople or operators for training or quality-control reasons. The key to monitoring calls legally is obtaining the consent of both the employee and the customer. Here’s what you can do:
- Require prospective employees to sign a consent form. Ask for this at the time you extend a job offer so that signing the form is a condition of hire.
- Notify current workers that calls will be monitored. Include a notice in your employee handbook and restate the notice in the handbook receipt employees sign. Also, you can distribute a memo to affected employees announcing your intention to monitor calls. The notice should explain that the calls may be recorded or otherwise monitored for training and quality-control purposes, and that the monitoring may be random and without prior notice.
- Never monitor calls if an employee won’t consent. If an employee refuses to consent, you may have grounds for discipline or termination. But take action only if 1) the routine monitoring is done in a nondiscriminatory manner; 2) it is part of a legitimate training and quality-control program; and 3) you can’t effectively assess the worker’s performance without it.
- Inform callers that conversations may not be private. Play a recorded message at the beginning of every customer call stating that the conversation may be monitored for training or quality-control purposes. By staying on the line, the caller consents to being taped.
- Use caution in investigations. It’s dangerous to record an employee’s statements on tape as part of an investigation or as a defensive measure, unless you get the person’s consent in writing or on the tape.