I have just taken a shop with a company I have worked with for about a year. They have a new client and the shop looks incredible (great food, generous reimbursement). The only problem is the recorded phone call (pre-visit). I live in Florida, which is a 2 party notification state. In other words, you can not record a phone conversation unless both ends are aware of it. So I bring this up to my scheduler, and she says she asked the client, and since THEY asked for the call to be recorded it is okay. But what about the person who is being recorded? I know this phone call will not be going to court (where it would be inadmissable as evidence) but it still sounds sketchy. I don't want to miss out on this and future shops. Just venting I guess, but opinions?

Edited 1 time(s). Last edit at 10/16/2013 01:27PM by CAscotch.

I would venture to guess that, more than likely, the employees had to sign an agreement before employment that they are subject to being recorded. If that's the case, then state law doesn't matter as the agreement would take precedence.

The question to ask the MSC rep is, "Has the client certified that employees have siged a consent form for audio recording?"

Is the site that you are calling in a two party state? For details about inter-state recording, please check out [www.rcfp.org]

Good catch on your part.

Thanks, Walesmaven, that's exactly what I will be asking. I am calling a site in a 2 party state, from a 2 party state (same state, FL)

I once worked for a lawyer that I would call a "sleazebag" on a part time basis. He did some divorce work and he had one case when he would call the opposing party, the wife in this case, and record the conversations. I did the transcription and he would always say in the beginning of the conversation, very low and very quick, "this conversation is being recorded." I would catch it because I was transcribing word for word. The poor wife never heard it as it was so quick and so quietly said.

plmccut,
That is not how recorded MS calls go! You probably know this, but I am adding it for the benefit of less well informed shoppers.

James Bond 007.5 Wrote:
-------------------------------------------------------
> I would venture to guess that, more than likely,
> the employees had to sign an agreement before
> employment that they are subject to being
> recorded. If that's the case, then state law
> doesn't matter as the agreement would take
> precedence.

"State law does not matter?"

Read the entire quote, Canadamommy. If the employee has signed an agreement that says they are subject to being recorded as a condition of their employment, that will supersede the state law, therefore the state law won't matter. I had that verified by an attorney before I went on the 10-day Florida shopping trip last month.

Perhaps I could have worded it better, but that is the gist of it. If you live in a two party consent state and, as a condition of employment, you sign a statement giving your consent to possibly being recorded while on the job, then you no longer need to be notified before being recorded. The state law is moot at this point because you have given your consent to being recorded while on the job.

Canadamommy,
,State law, in the US, is exactly what matters when it come to recording phone converations to which the person recording the call is a party to it. You have once again jumped in, as you always do, to muddy the waters concerning audio and/or video recording and persist in your fearmongering approach.

For the umteenth time, please consult the site that I have posted over and over again, reviewing US state laws and regulations and reminding people that the feds do NOT control this area. The feds are concerned with phone tapping, which is an entirely different matter.

The following site is maintained by attorneys who work with US news reporters who have to be concerned with audio recording laws in each state. Once and for all, would you please read this and stop trying to scare off every shopper who asks a question about audio recording?
[www.rcfp.org]



Edited 3 time(s). Last edit at 05/19/2013 01:24PM by walesmaven.

walesmaven Wrote:
-------------------------------------------------------
> The question to ask the MSC rep is, "Has the
> client certified that employees have siged a
> consent form for audio recording?"
>
> Is the site that you are calling in a two party
> state? For details about inter-state recording,
> please check out [www.rcfp.org]
>
> Good catch on your part.

This below is an excerpt from the California law as stated on the rcfp website regarding recordings in California where it is not legal at all except......
:
"The statute, however, specifically excludes from its application any conversations made in public places, government proceedings, or in circumstances where the participants of the conversation could reasonably expect to be overheard or recorded."


I interpret this to mean that if you are in a restaurant or retail store which is open to the public and people are sitting at the next table or standing in back of you at the register, the person I am talking to and might be recording (for my own memory aide) should have a reasonable expectation that the conversation will be overheard. I certainly have overheard many a conversation at the next table so I would reasonably expect to be overheard. What do you think? Not sure if other states have the same exclusion.

Sandy,
That exception in CA is so that it is legal to record police and other public officials in the performance of their duties, as I understand the current interpretation.

CA has probably the most stringent requirement for two party consent of audio recording of any state. In the example you give, in CA, you may NOT record your lunch companion's voice without first recording his/her permission to record.

For shops in CA, the employee must have signed a prior consent that is on file with the employer for the recording to be legal, unless the employee falls into the narrow "public official" exemption.

BTW, MD now has pending litigation concerning the legality of recording law enforecement officers in pursuit of their duties, because MD does not currently have that exception. This is viewed as a major civil liberties case because the incident that led to it was shown by the recording to be pretty damningly racist treatment by police of a person stopped for a simple traffic violation, if memory serves me. Since the police force in the case was already under court orders due to prior admissions of racial profiling, the driver decided to record the interaction. For that, he was charged with criminal violation of MD's two party consent law. If I had to bet, I'd place a fair amount of money on the driver, either because the court will carve out an exception or because, if it doesn't, our state legislature will act to do so. Last year the Illinois high court carved out just such an exception there. The ink on the Illinois ruling was not yet dry when the state AG leapt up and reminded everyone that the ruling had NOT invalidated the rest of the Illinois "two party consent" law for audio recording.


sandyf Wrote:
-------------------------------------------------------
> walesmaven Wrote:
> --------------------------------------------------
> -----
> > The question to ask the MSC rep is, "Has the
> > client certified that employees have siged a
> > consent form for audio recording?"
> >
> > Is the site that you are calling in a two party
> > state? For details about inter-state
> recording,
> > please check out [www.rcfp.org]
> >
> > Good catch on your part.
>
> This below is an excerpt from the California law
> as stated on the rcfp website regarding recordings
> in California where it is not legal at all
> except......
> :
> "The statute, however, specifically excludes from
> its application any conversations made in public
> places, government proceedings, or in
> circumstances where the participants of the
> conversation could reasonably expect to be
> overheard or recorded."
>
>
> I interpret this to mean that if you are in a
> restaurant or retail store which is open to the
> public and people are sitting at the next table or
> standing in back of you at the register, the
> person I am talking to and might be recording (for
> my own memory aide) should have a reasonable
> expectation that the conversation will be
> overheard. I certainly have overheard many a
> conversation at the next table so I would
> reasonably expect to be overheard. What do you
> think? Not sure if other states have the same
> exclusion.



Edited 2 time(s). Last edit at 05/19/2013 09:27PM by walesmaven.

Hmmm, Walesmaven
That is interesting and I wonder why they did not just limit it to recordings of "public officials" which would cover police people if that was the intent. But then I am not sure the website is quoting the actual law or just writing in their interpretation of it. I guess a restaurant or retail store is in actuality a private place however my reading of the quote I mentioned where it says OR in conversations where the participants would reasonably expect to be overheard basically means to me, and I am not a lawyer by any stretch of the imagination, that if you are close enough to others and not whispering or in some way trying to contain your conversation and shield it from others sitting or standing nearby then it is okay to record. I understand the intent you are explaining but this continuation of the exception to cover other situations where you could be reasonably overheard seems like an out for mystery shoppers making a recording especially since we do not intend to publish our audio recordings and only use them to listen to ourselves to jog our memories...I know the intent may not be important to the courts but I am just mentioning it as a side issue.
Am I grossly misinterpreting this for my own confidence in feeling legal in this issue?
The other 49 states may be interested as these issues seem to be prominent at the moment with more and more freedoms being restricted and at the same time open to government scrutiny now.

sandyf,
Don't step over the line in CA, please! CA is very, very active in this field. I do not know that the exception is only for law enforcement, but that was the reason for the "public officials" exception, historically.

There are only 14 states that require two party consent, and CA is by far the strictest. BTW, recording just for your own use does not have any exemption from the 2 party law. If there is a second party who can be heard on the recording that party MUST give consent.

Let's say that you record without consent on a shop in CA. The client disputes your negative report. You object, "But I have a recording to prove that the target said what I stated he said." You will be dropped like a hot potato by that MSC and they may very well pass along your name, with a warning to other MSCs warning that you might get them into legal hot water if you are allowed to shop in any 2 party state.

BTW, do you remember Linda Tripp, who recorded some phone calls regarding President Clinton and a certian female intern? Unless I am mistaken Linda T did time in jail for that, as MD is a 2 party state. Not a good career move!

I caution against fear-mongering, but I support respect for the law.

The best thing if you must record as a memory aid is to use the recording for that and that alone and never admit you have a recording in a 2 party state. And maybe delete it as soon as it has aided your memory.

Not suggesting anyone break a law, only if you're going to break it anyway, keep your mouth shut about it.

Just a thought: Frugalcat is an independant contractor. No-one is going to protect Frugalcat.

The employee will mind his own protection and the employer will state he has the right to record the employee without consent.

But who protects Frugalcat should the employee decide to sue ALL parties, not just the employer but the Independant Mystery Shopper?

Think about it.

I might be wrong but I would be weary if the employee is able to wrangle out of this and SUE someone...any and all parties related.

Which is why you keep your mouth shut about the recording.

The employer emphatically does NOT have the right to record the employee without the employee's consent in a two party state. That is what it is all about folks! It is the client's duty to get the employees' consent, in writing, in a two party stae, and to so certify!

Aack, now you guys have me even more nervous and paranoid. As far as if anyone "goes after me" about this recording, you know I saved the emails where I ask the MSC about this and they tell me its OK.

Do you ever get a telemarketer or similar call you and tell you at the beginning of the conversation "this call may be monitored or recored for quality assurance purposes"? and when they say that, you repond with something like If you are going to record this call then I will record it as well. And 9 times out of 10 they freak out and hang up. Or has this only happened to me?

Most banks that I call, and all brokers and mutual fund offices, have an outgoing warning that the call may be recorded. If you stay on the line after hearing that, you have given consent, according to state courts.

walesmaven Wrote:

> BTW, do you remember Linda Tripp, who recorded
> some phone calls regarding President Clinton and a
> certian female intern? Unless I am mistaken Linda
> T did time in jail for that, as MD is a 2 party
> state. Not a good career move!
>
> I caution against fear-mongering, but I support
> respect for the law.


Actually, according to Wikipedia the charges against Tripp were dropped before she went to trial :

"the Maryland state court ruled that Lewinsky, who "admitted that she lied under oath in a federal proceeding and has stated that lying has been a part of her life", was not credible and Lewinsky's proposed testimony against Tripp was "bathed in impermissible taint". As a result, all charges against Tripp were dismissed on May 26, 2000, when the prosecution decided not to proceed with the trial of the case."

But she could have gone to jail if charged and convicted.

DRJ,
Thanks for the clarification.

Canadamommy, and others who may be confused:
It is NOT against the law to record conversations in two party consent states. It is against the law to record in those states without the prior consent of the second party (i.e., the one who is not doing the recording.) In those states, employees whose employer will, or may, record or contract for recording of the employee, have forms that employees sign when they are hired, or when the recording policy is initiated, agreeing that they consent to being recorded for purposes of quality control and training. To protect themselves and their ICs, the MSCs that do audio recording shops verify that the employer/client has such agreements on file, before consenting to do recorded shops. That said, it is up to the shoppers to ask the right question before accepting such shops, because an MSC that is just getting started with recorded shops might have gotten poor, or no, legal advice on this matter.

So....the shopper's question to the MSC needs to be, "Have you verified that the client has the required written waivers from their employees in the 14 states that require employee consent for it to be legal for me to record them?" Ask it in writing and save the reutn email. The day that I go a note from an MSC president telling me that it was none of my business was the day that I deactivated myself and warned other shoppers. As far as I can tell that MSC is no longer in business.

Obviously, shoppers need to check the site that I have cited many times, most recently above on this thread. That site lists 13 two party consent states. Out of an abundance of caution, add Delaware to the list.

Well, after retirement from my 9-5 job I guess one party states will be added to my list of preferred requirements if I move.

FrugalCat Wrote:
-------------------------------------------------------
> I have just taken a shop with a company I have
> worked with for about a year. They have a new
> client and the shop looks incredible (great food,
> generous reimbursement). The only problem is the
> recorded phone call (pre-visit). I live in
> Florida, which is a 2 party notification state.
> In other words, you can not record a phone
> conversation unless both ends are aware of it. So
> I bring this up to my scheduler, and she says she
> asked the client, and since THEY asked for the
> call to be recorded it is okay. But what about
> the person who is being recorded? I know this
> phone call will not be going to court (where it
> would be inadmissable as evidence) but it still
> sounds sketchy. I don't want to miss out on this
> and future shops. Just venting I guess, but
> opinions?

Same thing here. When I inquired with the scheduler about recording. They pulled the assignment from me and did not notify me or respond to my question. It was the first time I was working for this MSC so I had not invested time with them. I regularly double check job boards when assigned just in case a mistake is made.

Good on you for asking the right question. If an MSC elects not to answer, they may not have a clue about what they are doing.
Will you name the MSC, please, and if not please PM me.