Are You Complying With Call Monitoring Rules?

Summary

5 top compliance measures you can take with regard to call monitoring, particularly in light of the Sirius Radio call monitoring class action settlement, valued at $180 million, plus attorneys’ fees.

Article

In light of the Sirius Radio call monitoring class action settlement, (www.satelliteradiosuit.com), valued at $180 million, plus attorneys’ fees, I intend to provide five top compliance measures you can take with regard to call monitoring.

  1. Monitoring a call in any way is subject to call monitoring rules. This includes live “listening in” or recording the call digitally or otherwise.
  2. California requires that all parties to a confidential communication consent before it can be monitored.  California applies its law to calls to or from the state. There have been lots of class action lawsuits regarding this rule which other states have not adopted (yet).  You must disclose monitoring at the outset of calls to or from California.
  3. There are other states that have a “both” or “all” party consent rule similar to California. These states apply their laws to calls from the state. However, given the cost of class actions and the California Supreme Court decision in Kearney v. Salomon Smith Barney, 137 P.3d 914, 931 (Cal. 2006), I expect plaintiff’s lawyers in those states to attempt to expand the Kearney language to their state laws. Thus, unless you want to defend a class action arguing that those state laws should apply to calls to or from the state, the conservative course is to disclose monitoring in calls to or from those states as well.
  4. The disclosure can take any form (beeping, “This call can be monitored for quality control purposes,” etc.) and the consumer does not have to affirmatively consent to the monitoring. If the consumer continues with the call after the disclosure, consent is effective and implied.
  5. The monitoring disclosure needs to be after the initial salutation (name and purpose of call). You don’t have to say it at the very outset, just after the first greeting.

As always, I would be happy to review any scripts or compliance procedur