Placements & The Law

TAPING TELEPHONE CALLS: REPLAYING WITH FIRE

The greatest consultant training device ever developed is undoubtedly the cassette tape recorder. From receiver pickups to sophisticated electronic devices, both sides of telephone conversations can be preserved. Cold calls to clients, recruiting calls to candidates, collection calls, personal calls – anything that good must be illegal! And may be.

Speaking of training, here’s a mini bar exam for you. Telephone conversations can only be taped if:

1. They are used for training only.
2. You reasonably believe that your consultant is looking for another job.
3. One party consents.
4. It is necessary to protect your files.
5. None of the above.

If you answered “5. None of the above,” you passed. Most people answer “3. One party consents.” Monopoly, not bingo: Go directly to jail in some states. Lose your telephone in others. For example, California Penal Code, Section 632(a), enacted in 1977, provides:

Every person who, intentionally and without the consent of all parties to a confidential communication, by means of any electronic . . . recording device . . . records such confidential communication by means of a telephone . . . shall be punish-able by a fine not exceeding $2,500, or by imprisonment in the county jail not exceeding one year, or by imprisonment in the state prison not exceeding three years, or by both such fine and imprisonment.

Similar statutes exist in Florida, Georgia, Hawaii, Kansas, Illinois, Massachusetts, Michigan, Montana, Oregon, Pennsylvania, Texas, and Washington. Incoming and outgoing calls are included.

As early as 1961, the Court of Appeals of Ohio determined that invasion of privacy exists when a private and business telephone subscriber’s lines are tapped (LeCrone v. Ohio Bell Tel. Co., 114 Ohio App 299, 19 Ohio Ops 2d 236, 182 NE 2d 15). Punitive and exemplary damages for this conduct have been awarded by courts in many states, and under Title III of the Federal Omnibus Crime Control and Safe Streets Act of 1968 (18 USC 2510 et seq.), civil remedies are specifically authorized when telephone communication is intercepted in violation of a statute.

You can see the trend. But there’s more: Intrastate telephone company tariffs in many states provide for removal of equipment and suspension of service. By an order released in 1983 (FCC 83-479-33888), the Federal Communications Com-mission stated:

We clearly intend(ed) that the consent to record be obtained prior to recording a conversation. . . . If there is any possibility of enforcement, the consent, if verbal, must be recorded.

The telephone tariffs (regulations) across the country are continually being revised to comply. Whether this will accelerate criminal and civil laws remains to be seen.

So the key is to obtain the consent of the other party. While consent to the taping and consent to the use may be quite different, evidence of knowledge on the tape is a credible defense (and mandated by the order). The earlier the better. Here are a few examples of how you should begin:

SOLIClTlNG A JOB ORDER

“We’re training a few new associates in our office. This gives us the opportunity to perform an even more extensive search. To save you time, I’d like to record our conversation and play it back for them later. Alright?”

“I’d like to review the specifications carefully with my associates in our staff meeting this afternoon. Do you mind if I tape our conversation?”

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“I’ve found that tape-recording job requirements saves the client time and enables me to obtain the important details necessary to identify the right candidate. Do you have any objections?”

RECRUITING A CANDIDATE

“We’ve been receiving a large volume of search assignments in your field and have expanded the number of account executives. I’d like to tape our conversation to review with them. Okay?”

“Since you don’t have a résumé, the most convenient way for me to take down your qualifications is to tape-record this discussion. Any problem?”

“Let me ask you a few questions about your background to see whether our client would be interested. We tape these for speed and accuracy. Is that all right with you?”

The phrasing can be adapted to the circumstances and should be accurate. Then, at the beginning of the conversation on the tape, the following should be said:

“As we just discussed, I’m taping this conversation for use in our office. You have no objection. Is that correct?”

As long as you receive an audible, affirmative reply, BINGO!

Jeffrey G. Allen, JD, CPC, turned a decade of recruiting and human resources management into the legal specialty of placement law. For over 32 years, Jeff has collected more placement fees, litigated more trade-secrets cases, and assisted more search and placement practitioners than anyone else. From individuals to multinational corporations in every phase of staffing, his name is synonymous with competent legal representation. Jeff holds four certifications in placement and is the author of many best-selling books in the career field. He can be reached at Law Offices of Jeffrey G. Allen, 10401 Venice Blvd., Suite 106, Los Angeles, CA 90034; (310) 559-6000; jeff@placementlaw.com. The Placement Strategy Handbook and other books on search and placement can be purchased at www.searchresearchinstitute.com.

More than thirty-five years ago, Jeffrey G. Allen, J.D., C.P.C. turned a decade of recruiting and human resources management into the legal specialty of placement law. Since 1975, Jeff has collected more placement fees, litigated more trade secrets cases, and assisted more placement practitioners than anyone else. From individuals to multinational corporations in every phase of staffing, his name is synonymous with competent legal representation. Jeff holds four certifications in placement and is the author of 24 popular books in the career field, including bestsellers How to Turn an Interview into a Job, The Complete Q&A Job Interview Book and the revolutionary Instant Interviews. As the world?s leading placement lawyer, Jeff?s experience includes: Thirty-five years of law practice specializing in representation of staffing businesses and practitioners; Author of ?The Allen Law?--the only placement information trade secrets law in the United States; Expert witness on employment and placement matters; Recruiter and staffing service office manager; Human resources manager for major employers; Certified Personnel Consultant, Certified Placement Counselor, Certified Employment Specialist and Certified Search Specialist designations; Cofounder of the national Certified Search Specialist program; Special Advisor to the American Employment Association; General Counsel to the California Association of Personnel Consultants (honorary lifetime membership conferred); Founder and Director of the National Placement Law Center; Recipient of the Staffing Industry Lifetime Achievement Award; Advisor to national, regional and state trade associations on legal, ethics and legislative matters; Author of The Placement Strategy Handbook, Placement Management, The National Placement Law Center Fee Collection Guide and The Best of Jeff Allen, published by Search Research Institute exclusively for the staffing industry; and Producer of the EMPLAW Audio Series on employment law matters. Email him at jeff@placementlaw.com.

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