How Your Employer Can Legally Listen to and Record Your Phone Calls

If you call any customer service line, you're likely to hear a recorded statement explaining that your telephone call may be "monitored for quality control." Most people find that type of monitoring to be understandable because the customer service people are talking to members of the public who use their employer's services or buy their products.

However, the extent to which an employer can legally listen in on and track the communications of workers who aren't dealing directly with the public might surprise you. Whether it's a call made from the phone at your desk or from an employer-provided cell phone after work hours, your employer often has wide latitude to monitor your communications.

Calls on Business Phones

Your employer has the right to listen in to any business-related telephone call on your work landline phone, even if they do not let you know they are listening. According to the Privacy Rights Clearinghouse (PRC), employers are supposed to stop monitoring a call once they realize it is personal in nature. However, If your employer has an announced policy about not making personal phone calls on your business phone, you should assume any personal calls you make on that phone are not private.

Consent to Recording

Eleven U.S. states have adopted laws effectively prohibiting the recording of a conversation unless all parties involved have consented to it. These are often referred to as "two-party consent" laws even though the number of people involved in the call may be higher than two.

The U.S. Congress, 38 states, and the District of Columbia have enacted "one-party consent" laws that require only one person involved in the call to be aware it is being recorded in order for the recording to be legal.

According to the Digital Media Law Project (DMLP), the 11 states with two-party consent laws are:

1. California
2. Connecticut
3. Florida
4. Hawaii
5. Illinois
6. Maryland
7. Massachusetts
8. Montana
9. New Hampshire
10. Pennsylvania
11. Washington

The DMLP notes some caveats to these laws:

• The Illinois law was struck down as unconstitutional by the state's Supreme Court in 2014. It's generally a one-party consent state because of the federal law, but recordings that are done secretly may run afoul of Illinois common law on privacy grounds.
• Hawaii mandates two-party consent only when the recording device is "installed in a private place."
• The Massachusetts law generally bans recordings that are done secretly; it does not require consent from the affected parties.

In some of those states, being made aware that you're being recorded and continuing the communication may be seen as consenting to the recording.

Communications on Cell Phones

If you use an employer-provided cell phone for your job, the organization you work for can monitor everything on and associated with the phone. According to the PRC, those things include text messages, emails, internet use, location, contacts, call logs, photos, and videos.

If you're permitted to do so, you may prefer to use your own cell phone for work. Your employer is likely to state in writing its privacy policy regarding your personal phone. Read the policy carefully—and ask for it if it isn't offered. Depending on the terms of the policy, you may decide it's better to keep your work phone and personal phone separate.