California Call Recording Law

by Jose Luis Perez May 11, 2021
California Call Recording Law

With the advancement of technology and the importance of business intelligence, more and more companies tend to record, store and analyze the conversations between their employees and customers for the purposes of quality control, business intelligence and Marketing.

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Speaking of call recording in California, when both parties on the call are in a state that federal law allows call recording with the consent of only one party to the conversation, the employee’s consent is sufficient to prevent a successful lawsuit. When one of the parties is in a state that only allows call recording with the consent of both parties to the call, the obligations of the company are increased and the legal compliance processes are less secure.

When it comes to recording phone calls and other private conversations, California is a “two-party consent” state. According to the California Invasion of Privacy Act and in particular section 632 of the Penal Code, all parties on the conversation (even if there are more than two) must give their permission or else recording that conversation would be illegal. This applies to “confidential communications,” that is, conversations in which one of the parties has an objectively reasonable expectation that no one is listening to or recording the conversation.

If someone is being recorded without their knowledge in a public or semi-public place such as a street or restaurant, the person you are recording may or may not have “an objectively reasonable expectation that no one is listening to or recording the conversation,” and the reasonableness of the expectation would depend on the particular factual circumstances. Therefore, it cannot be assumed by default that call recording without consent is allowed simply because the recording is taking place in a public place.

Those companies that have their operations in the State of California, should always obtain the consent of all parties before recording any conversation that common sense says could be “private” or “confidential”. Failure to comply with this consent can subject companies and their managers to criminal proceedings, and violating California’s wiretapping law can also result in civil lawsuits for damages.

What are the consequences of recording a conversation without the consent of all parties?

Each violation of section 632 or 632.7 of the Penal Code is punishable by a fine of up to $ 2,500 and up to one year in prison. Repeat cases after a prior conviction are punishable by fines of up to $ 10,000 per violation and up to one year in prison.

Additionally, per Penal Code section 637.2, a person injured by a violation of California’s Right to Privacy Law can sue the offender in civil court for triple the amount of damages actually suffered or $ 5,000 per violation, whichever is greater. And a conversation that is illegally recorded cannot be used as evidence in court or in administrative proceedings.

Can my phone calls at work be recorded?

If your employer is a “person” under Sections 632 and 632.7 and is therefore subject to the restrictions of the law and can record the calls you make on company phones as long as you have given your consent (and all the other parties on the call have given their consent). Please note that you may have been asked to consent to such recording as a condition of employment in your employment contract.

If your employer has given consent for calls to be logged as a condition of employment, then it stands to reason that any internal calls (i.e., do not call anyone outside the company) can be recorded without prior notice. But calls made to or from outsiders cannot be recorded without the consent of the outsider.

One notable exception contained in section 435 of the Labor Code is that an employer cannot have an audio or video recording made of an employee in a bathroom or locker room without a court order. An employer may not use a recording made in violation of section 435 for any purpose.

Learn more about our Recordia call recording solution, it complies with California regulations.

Disclaimer, we are not lawyers, this post should not be taken as legal advice. Be sure to consult with legal counsel before beginning a call recording program.

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