I've been doing Mystery Shops for a few months now, and enjoy it. I now have a small voice recording device in my shirt pocket for almost all Mystery Shopping assignments. This way I can make sure all my information is correct and I write much better reports. Also, on assignments, where you need to time any part of it. This comes in very handy. No more looking at a stop watch. There are times when you should NOT use it, such as bank assignments.

What do you use to keep track of your assignments?

John, I hope that you are only using the recorder in "one party consent" states. There are 14 states where it is illegal to record without the prior consent of the other party. For details, please see the thread on recorded shops near the top of the posts at New Mystery Shoppers, here.

WOW. John, I just saw that you are in Southern CA. CA has the strictest "two party consent" laws in the country and recording another person without their prior consent there is a felony.

You may want to reconsider your position.



Edited 1 time(s). Last edit at 03/06/2015 03:54PM by walesmaven.

I believe that's only for using the phone. In public, you can record.

California's wiretapping law is a "two-party consent" law. California makes it a crime to record or eavesdrop on any confidential communication, including a private conversation or telephone call, without the consent of all parties to the conversation. See Cal. Penal Code § 632.Dec 3, 2009....only if it's a PRIVATE conversation. In the public, it's not private.

You weren't in public when you recorded the apartment leasing agent. You may be misunderstanding the definition of public. Businesses are not public spaces. They are privately owned spaces open to the public. Big distinction.

Lisa, those job at the apartment are in public. I did not record anything over the phone. The apartments, there are others around listening to the conversation. To expand on the law.

"If you are recording someone without their knowledge in a public or semi-public place like a street or restaurant, the person whom you're recording may or may not have "an objectively reasonable expectation that no one is listening in or overhearing the conversation," and the reasonableness of the expectation would depend on the particular factual circumstances. Therefore, you cannot necessarily assume that you are in the clear simply because you are in a public place."

Did you read the last sentence you quoted? And no, that apartment leasing office is not a public space regardless if there is no one there to overhear or 150 people. It is a private business open to the public.

Lisa, that's interesting, because I have had Mystery shopping sites that tell you to record the conversation, and send it to them. I am now asking lawyers in California this question. Lets see what they have to say.

That's simple enough. The target must have agreed to be recorded at some point. Often employers that want to utilize audio and/or video mystery shopping will include a waiver as part of their employment contract. As long as the employee gave permission in writing at any time, it's legal.

Lisa, just curious, have you ever talked to any lawyers on this subject? I'm doing that now.

I'm in a one party state.

This post explains the laws and offers a link to a reliable website.

[www.mysteryshopforum.com]

I have read that. I also read...."The above law has obvious loopholes. If the parties did not reasonably expect privacy, such recordings are perfectly legal. The question of such reasonable expectations is for the Trier of Fact to determine and the typical “gray” case involves conversations on street corners with people passing by or in restaurants or bars. The criteria is simple: would an average person consider the contents of the conversation as private. Simply because one is in a public place does not mean there is no expectation of privacy…many private conversations occur over a restaurant table. The person taking the recording thus risks a great deal if consent is not clearly and audibly obtained."

[www.stimmel-law.com]

We can go round and round on this one. There are loop holes in the law. I'm asking some lawyer in California, about this. Lets wait and see what they have to say.

We're not going to tell you what to do or not do if you want to take the chance based on your understanding of the law. But please try not to suggest in your comments that others should do what you're doing. It's highly likely that what you are doing is a violation and should not be emulated. It might be best to ask the MSC of each shop if the client's employees have agreed they may be recorded at work before you walk in there with a recorder (or at least before you admit having done so).

I am waiting on replies from lawyers in California. From what I've been reading, there are issues with the law. You're right, if people don't feel comfortable in doing it, they shouldn't. I will ask some of the companies. Those I do apartment shops.

John,
It is noteworthy that all of the video shopping companies, whose assignments also include recorded audio and so are covered by the 2 party consent laws, agree that prior consent is required in CA. Be sure your lawyer is looking at the law for AUDIO recording and NOT for phone taps. They are two entirely different laws.

Also, just call the MSC that told you to record and ask, "Have you verified that the client has obtained prior written consent to audio recording by all of its employees?"

The expectation of privacy loophole is for video recording, BTW, not for audio. The video loophole was affirmed by SCOTUS some time ago. The audio laws vary by state.

And, yes, I know many, many shoppers who have consulted a lawyer on this subject and, asked the right (audio) question, their lawyers agree, as do the lawyers advising all of the radio and TV companies whose employees record audio as part of their jobs. (They record the consent of the interviewed party on the spot, but do not broadcast that part of the interview.) Passersby may be inadvertantly recorded, but the subject of the interaction ALWAYS has the protection of the prior consent law in two party states.

Both MSPA and IMSC conference speakers who are specialists in this subject agree with what I have said here.

It's going to be very tough to do some shops without it. You're being told to remember way too much information. One shop, Cirrus 360, have down graded my reports, on things that were never said during the tour. I was told I asked too many questions on one report and on another I didn't ask enough questions. How would they know what was said? They don't have any recordings. I have deactivated my account with them.

That's why I'm glad I'm in a single party state. I used to live in California and travel there a lot but have never done a shop there while traveling because my memory isn't good enough to do a shop without a recording (although the longer I shop the less I have to consult the audio; mystery shopping has helped improve my memory).

Most of the successful MSers have learned to remember the important items for the reports and/or to avoid certain shops where they feel that they will not be able to perform up to the client's expectations. Asking too many questions tends to "lead" the target, and that is definately not what most clients want. If they want that, they will specify it in the guidelines!

My main problem is with Cirrus360. I did 4 apartment shops for them. On one I was told "you told the agent your move in date was November." That was a lie. I never said November, I said 2 to 3 weeks, and this was in February. Another report I was told, I asked too many questions, and another I did not ask enough questions. How would they know what was even said, they don't have a recording. All my reports were knocked down over what someone else said.
I deactivated my account with them.

johnb974 I am interested in hearing what the lawyers you contacted said about audio recording. When I looked into the California law a few years ago my interpretation was that if you were in a public place..not meaning a place that was public like a park but also a place where the public had access like an open door into a restaurant or retail store that anyone could walk through you did not need the other parties consent if there was a reasonable expectation you could be overheard. I do not do apartment shops but I would imagine there would be many times when you are alone with the sales person in the apartment you are looking at etc. However, in a restaurant or retail there is always the expectation for me that someone at the next table or when on line to pay the person in back of you in line would overhear what you are saying. I do not expect to be able to defend myself so I am very careful but if I were the judge that is how I would interpret this. However, I am not the judge so do not expect to meet me on the bench! Anyway, let me know. Hopefully you have asked more than one lawyer as there might be differences of opinion on this subject. All lawyers are not expert in everything law related so you need to find one in the area of law this would fit under.

My question is: would it ever be an issue if you just used the recording to write your report? NOT to dispute it, but to write it up and delete it?

Fortunately, it is not an issue for me!

I love mine for timings.

The subject came up because he tried to argue with the MSC and told them he had a recording. The thing is, whether you're talking about covert illegal recordings or cheating on your taxes -- never talk about it!

Maybe I will find the recordings useful when I am older and my memory not as good as it is today. From the discussion here, I hope my memory remains intact for many decades to come.. What is wrong with recording then deleting later? For those who live in Canada anyway. I use my phone for timings, it is not uncommon here for people to be on their phone every five seconds (literally). Interesting discussion

I wasn't arguing with anyone. I was just having a discussion.

Chix, I use mine for doing reports. The subject of one company saying I did one thing, and I said another. I knew they were lying. They had no idea as to what happened during the shop. The agent can say one thing, you another. you lose every time. The one company I mentioned, Cirrus360, is the only company that has done that. There's another thread on this site, of people warning not to do business with them.

Chix, I never should have brought the subject up. I'll be more careful about what I say on here about my shops.

When I'm in a one party consent state, I'll tape for my personal records as long as guidelines don't prohibit it.

Don't ever use them in the reports though - just have them to fall back on if I've forgotten an important detail.

Also for timing crucial shops I use them. But only in one party consent states. If I ever am in a two party state, I forget my audio record even exists.