In part one of this series, we explored reasons to record your calls. This included quality management and various industry regulation. In part two of this series will explore reasons not to record your calls, specifically state laws regarding two-party notification. We will also discuss ways to keep your recorder compliant.
State Recording Laws
Recent political activity has created excessive attention toward the act of recording telephone calls. We have received numerous inquiries from our clients and prospects regarding call recording and state recording laws.
Each state has its own laws regarding the recording of telephone calls. The key differentiator in these laws is the number of parties to the call that must provide informed consent to the recording. In most states, only one party must consent. In twelve states, all parties must consent.
How to Notify
There are a number of ways to alert callers that their conversation with your company is being recorded. There are also many ways to inform your employees.
Employer / Employee Agreements are perhaps the most suitable means of gaining consent from your employees. Many call centers have an employer / employee agreement that specifically states that the employee understands that their company phone calls may be recorded. This it typically a signed agreement. If consent to be recorded is an item that is included in an employee handbook or similar document, the document should include some form of signatory page to verify the employee has received and read the handbook.
Inbound callers are usually notified through an announcement stating “This call may be monitored or recorded.” It is important to consider where the announcement is played in the call routing. It is often played after any touch-tone or voice prompting and before the caller is connected to an agent or a queue. Playing the notification as a message in queue is not recommended, as this will result in either bypassing the message if the caller is connected directly to an agent, or redundant announcements.
Beep tones may also be used as a means of notifying callers that recording is taking place. Our research found that the requirements for a beep tone relate to its frequency and duration: the beep tone must be within 1260-1540 Hertz, and it must last .17 to .25 seconds. It must be played every 12 to 15 seconds while the call is being recorded, and it must be audible to all parties being recorded.
Which States Are Two-Party?
- New Hampshire
We found https://www.rcfp.org/taping/ to be a useful resource in researching state recording laws.
Our research has found Canada to only require one-party notification. As with any legal matter, if you have concerns regarding your call recording for calls to or from Canada, we recommend you contact an attorney.
But What If…
Here’s where the lines get blurry:
What if a person in a one-party state calls a person in a two-party state?
For example, a call center agent on Ohio, a one-party state, calls a person in neighboring Pennsylvania, a two-party state. If the recording takes place in Ohio, is it under Ohio’s laws and jurisdiction, or do Pennsylvania’s laws apply to its citizen? If you must record the call for compliance or regulatory requirements, you may be at risk with federal legislation if you do not record the call. But what if you are not able to obtain the callers consent?
We have not been able to find a conclusive answer for this situation! For clarification you can always check with an attorney familiar with the laws of the states and countries in which you do business.
Rock, Paper, Scissors?
Here’s what it comes down to: are you willing to play rock, paper, scissors with state and federal laws, or with the laws of two different states?
Which has precedent, the federal regulation that says all customer transactions must be recorded or the state law that requires consent from all parties to the recording?
Which state law wins if one state is one-party and the other is two-party notification, assuming the act of recording takes place in the one-party state?
While we have not been able to find conclusive rulings for these conflicts of laws, we do have recommendations for best practices in recording notification that will help you mitigate and possibly eliminate risk of falling out of compliance. In our professional opinion, it is best to err on the side of caution and always notify your callers of the potential for recording.
Notify Your Callers
There are many ways to notify your callers on both inbound and outbound calls.
Most inbound callers are notified of the potential for recording by an automated message. Yes, this is the famous “This call may be recorded…” announcement!
Outbound notification is very different. If you are using a predictive dialer, or other automated dialing technology, you may have the ability to insert a recorded notification after your customer picks up and before the call is connected to your agent, but do you want to? In a sales or collections environment this is not an ideal way to begin your interaction.
For outbound calling, we recommend you have your agents notify the customer. This can be done immediately at the beginning of the call through a scripted introduction. For example, “Hello, this is Rick with CallCopy calling on a recorded line…”
One item of caution for this type of notification: if you are speaking with more than one party, it may be necessary to restate the greeting for all parties. For example, if a person answers, hears your greeting, and then hands the phone to another member of the household you should restate the greeting when the other party comes on the line.
If you do not want to open your call with a recording notification, we recommend you do not record outbound calls to two-party states, or that you use a record on-demand function to record only the portions of the call that are required, and do so after a different notification script is used later in the call.
For any situations where your agents are providing the notification, you should have checks and balances in place to ensure your staff is adhering to the requirements. Using tools in your CRM or other systems to present scripts or reminders to the agent is helpful. You can also check for script adherence in your quality monitoring and use speech analytics software to find calls that do – or do not – contain the required scripts.
Even your best agent is prone to forget something from time to time. If your technology permits, you can create automated scripting flows or reminders in a CRM application. Having reminders or guided scripts will help minimize human error. It also reduces the training requirements for script adherence. Without reminders, your agents must always remember to recite a notification script. To train a person to do this requires repetition of the learning exercise in order for the script to stick in long-term memory. If agents are trained to follow the scripted flow, less repetition is needed in learning the correct verbiage for the actual scripts.
If script adherence is a critical part of job performance, it should be a critical field on an evaluation form. Some quality management systems, will allow you to set dynamic point values for each question / response in the form. This enables you to set a higher point value and add weight to questions that have a significant impact on your business. You can also consider the use of an auto-fail flag to further weight the scoring.
By including script adherence on your evaluation forms, you should then be able to report on this specific metric to identify trends in agent or team adherence. This provides valuable insight in regard to who is or isn’t following the required scripting.
Speech analytics is a technology that will analyze recorded calls and spot key words and phrases. There are a number of solutions available. A key differentiator among the applications is the method of analysis: large vocabulary continuous speech recognition (LVCSR), or phonetic-driven engines. Both types of analytics are suitable for script adherence measurements, identifying calls where scripts are or are not used. One key to maximizing the effectiveness of speech analytics for measuring script adherence is to control the consistency in how the script is read. The longer the phrase you are searching for, the lesser the chance for false positives. Eliminating variations from the script is crucial. For example, you would not want one agent to say “Is it OK if I record this call” while another says “I would like to record this call now, is that alright?”
Speech analytics technology is not 100% accurate, but it can be effective in identifying trends in agent and team performance. It is definitely better than performing a manual audit of all of your recorded calls!
Recording Blocks and Filters
A final recommendation for managing recording to and from two-party states is through recording blocks and filters. This is a feature that may not be available in all call logging systems. This type of functionality would use call data, such as ANI (automated number identification, very similar to caller ID) or DNIS (dialed number identification service, a number identifying what number was dialed by the caller). Other data may be used such as routes in the phone system (sometimes called applications, vectors, VDN, depending on the phone system in use). The recorder will evaluate this data as it is received, and if it matches a list of restricted values the call will not be recorded. For ANI, a partial match can be used to filter based on area code. There approximately 100 area codes in the twelve two-party states.
By filtering calls to or from two-party states, and then using on-demand recording in conjunction with proper scripting, you will be able to minimize or eliminate the risk of recording calls without proper consent while still recording the calls or portions of calls that are needed for compliance.
The information presented does not constitute legal advice, and we strongly encourage anyone seeking more detailed information to enlist the services of a lawyer who is versed in the requirements for your industry and/or state.