Hello, I am new to the mystery shopping business. In California, we have a two party consent law that requires the people having the conversation to be aware that they are being recorded. Some of the shops (apartments shop, for example) require that you record the shop from start to finish; but this is in a public place. It also requires phone conversations to be recorded on their company line (Business Observations) without telling the other party. Does anyone know if this is OK to do in California?

I'm unfamiliar with the laws, but I would read up and ask the companies you are shopping with. It may depend on how it's being used. Is the two party rule for court and law only? I really don't want to lead you astray and best options would be to wait until some Cali shoppers chime in here :-) Just wanted to get the thread a rolling since this would be an interesting subject!

When they are at work they have no reasonable expectation of privacy, and the company they work for is allowed to record everything they do in the workplace without notifying them. By working for the company they are giving their implied consent, so you don't have to tell them that they are being recorded.

That is not exactly true. Private conversations between two parties require consent from both parties in two party states. In the case of businesses such as apartment or home rental, their consent is likely covered by their employment contracts.



Edited 1 time(s). Last edit at 02/11/2017 05:00AM by bgriffin.

BG is correct! If you are concerned, ask the MSC to verify that the client has obtained written consent from all employees. Audio recording of in person or phone conversations by one of the parties is legal only if all parties have given consent. And, the law does not care what use you do or not make of the recording!

btw, the prior consent requirement mean that we ALWAYS need to ask some tough questions if offered an audio recorded shop for a competitor of the client. Sometime the client, or the MSC has been wrongly informed by legal counsel because they just asked if video recording without consent was okay in public spaces. BUT they did not tell the lawyers that the AUDIO would also be recorded! Since audio recording may be barred without consent by states, but video recording is covered by a SCOTUS ruling that does not require consent except in bathrooms, dressing rooms, bedrooms and other very private places, but otherwise allows it. Once the client or MSC asks the correct legal question (about audio consent laws) they quickly learn that in at least 12 states (and perhaps as many as 14) , written or other prior consent is needed. In most cases, that consent is obtained by the employer as a precondition to employment.

Think about all of the phone calls you have made to or gotten from businesses that start by stating that the call may be recorded. In that case, you give consent by staying on the call. For phone calls, the consent is required if either the originating state or the destination state of the call has a dual consent law!

For citations from legal experts that my post relies upon, please go to the New Mystery Shoppers area and click on the topic concerning audio and video recording.



Edited 1 time(s). Last edit at 02/11/2017 12:57PM by walesmaven.

Thanks for all your answers. I will check with the MSC before accepting any more just to be sure.

@walesmaven wrote:

For phone calls, the consent is required if either the originating state or the destination state of the call has a dual consent law!

Are you certain of that? I thought the law only applied to the state of the physical recording. IE If I am in Florida, which is a two party state, and I am recording a call to Georgia, a single party state, then I have to have consent. However, if I am in Georgia and recording a call to Florida, I do not have to have consent. Perhaps I was confused?

I say that because if I am in Georgia the state of Florida has no jurisdiction over me whatsoever.

I did reach out to the msp that was sponsoring the eval. They vet all that before they put it out for request by a shopper. IOW, the company paying for the eval had its employees sign as a condition of employment that they could be recorded. They gave consent in advance. Whoo!

Great. That is standard protocol. Honestly with reputable companies I've never even bothered to ask.

bgriffin,
Yes I am positive. The two legal sources are the sites that have links in my post in the New MSers area. The State of Florida's law protects the FL recipient of the call you make from a one party state. At least that is what the attorneys who advise reporters agree on.