Phone Call Recording Laws – Practical Advice for Recording Sales Calls
Show me a sales leader who doesn’t want to record the calls of their team and use them like a sports coach uses game film. You’d be crazy not to. Recording sales calls for training, coaching, and creating a best practices library of the best calls is the equivalent of mom, dad, and apple pie for sales leaders. But there is a lot of confusion about if and how you can legally record calls. The vast majority of sales leaders I meet fall into one of these categories:
- They heard someone say that recording sales calls is illegal, so now they are scared and categorically say it can’t be done.
- They aren’t sure if recording sales calls is legal or not, but they do it anyway.
- They are in a one-party consent state and have a company recording policy in place where they have procedures like purging calls periodically to reduce risk further.
- They understand laws around call recording, but can’t get their corporate legal team to give them the green light to record legally even with consent. As a result they use their cell phones or the recording features in screen sharing tools like WebEx, GoToMeeting, ClearSlide, or join.me to record sales calls sporadically and hide what they are doing from others in the company.
You may fall into these categories or another category entirely. The purpose of this article is to give you the facts on how a variety of companies are responding to the opacity of phone call recording laws from State to State. Before reading on I recommend that you get the basics down by reading this brief on phone call recording laws first.
There are a lot of ways to legally record sales calls. The following are points to keep in mind as you prepare to have a meaningful discussion with your legal team, compliance, and other senior executives about your sales call recording policies and procedures. Note that I am not a lawyer. These points are based on what companies are doing today, not case law.
- Getting consent to record for scheduled sales calls. For any expected/scheduled sales call you can easily get consent by using this line that came from the GC of ZoomInfo by way of Peter Weyman, “Do you mind if I record this call so I can focus on the conversation and check my notes later.” For scheduled sales calls you will get a yes 99.5% of the time to this request. What buyer doesn’t want the sales rep to focus on the conversation? You can further elaborate on the request by saying, “We’ll only use this call internally for training and will also be happy to send it to you to share internally with others to get them up to speed.” This is a win for the buyer who otherwise would have to remember what happened in the meeting and relay it.
- Recording only one side of the call. Many technologies exist to automatically record only one side of the conversation if you happen to be in or calling into a two-party consent state. This way you can capture the recording of only what the rep says without having to ask for consent from the prospect (which is awkward and mostly unworkable for unexpected/unscheduled calls). If you want to review technology options, check out the Sales Acceleration Buyer's Guide, for an overview of call recording technologies.
- Getting consent to record for unscheduled sales calls (like cold calls). I have heard of several sales teams who start calls by saying, “I’m in training now so this call is being recorded for me to learn.” Rookies and veterans alike use this line. Lauren Bailey of Factor8 Training told me that she uses this line with several of her clients to get consent for unscheduled/unexpected calls, thereby remaining compliant. Buyers almost always say yes plus they take it easy on what they perceive as green sales reps – a double benefit. I haven’t tested this line myself, though I hear that others beyond Factor8 clients are using this successfully.
- Putting a call recording statement on a web form. Companies who solely call website generated leads are putting the consent to record statement on the web forms. For example a buyer might see something like this, “By filling out this form you acknowledge that any subsequent calls from a representative of XYZ Co. may be recorded for training purposes.” Then when a sales rep calls to follow up on the lead, they can record legally.
- Many State laws are badly misunderstood. States like Maryland have phone call recording laws that are totally misunderstood. I had an exchange with a former member of the Maryland State Attorney General’s office who pointed out that the law is for wiretapping, not phone call recording. So if two parties are on a call, a third party cannot enter the call unidentified. The implication here is that it’s legal to record calls in MD but it could technically be considered illegal wiretapping for a sales manager to be doing headset splitting without identifying themselves. You might be breaking the law with right now unwittingly with your side-by-side coaching program. See below for full text of the email from my friend.
- Using a faint beep tone. Many companies elect to have a faint ‘beep tone’ in the background of the call to alert the other party that the call is being recorded. I have heard (but not verified with a lawyer) that laws specify the frequency and pitch of these tones, but not the volume. In theory you could have a barely perceptible tone in the background of a call in order to record any call legally.
- Lawyers prefer to have policies and documentation vs. the Wild West. Most corporate lawyers (aka Counsel or GCs) prefer to have a policy in place for call recording vs. leaving it to each individual rep to decide if they are going to push the recording button themselves. There is a lot of risk for companies who give their sales force access to screen sharing tools, dial bridges, dialers, and other technologies which have recording functionality while not providing sales reps guidance on how to use recording features. There is much less risk in having a company policy that is documented, trained on, and understood than having call recording turn into the Wild West. Bring this point to your GC to get their support and build a program that is legal, approved, and documented.
I said it before and I’ll say it again. I am not a lawyer. I have not vetted these various business practices against case law as any good attorney would do. #NotALawyer. For any of these possible solutions you need to consult a lawyer, but don’t take the first no as the truth. An examination of case law will frequently uncover that you can absolutely record calls legally without asking for consent in your State. Just look at Maryland.
And even if you can’t, there are lots of other options like one-sided recording or simply asking for and receiving consent from the other party. As with any other legal matter, it’s all about mitigating risks. And let’s not forget the customer in all of this. If call recording allows your sales reps to have better conversations, your prospects and customers win.
Are you currently recording calls? How have you dealt with different customer call recording laws? What was your story of convincing others in your organization to allow for a policy of recording calls?
Email from a former staffer of the Maryland Attorney General office: False Assumption: Maryland law prohibits the “taping” or “recording” of conversations without the consent of all persons.
The Truth: Maryland law prohibits the “interception” of “communications” without the consent of all persons to the communication and does not even mention “taping” or “recording” anywhere in the part of the statute related to criminal violations.
Explanation: Maryland law states the following verbatim:
Unlawful acts. -- Except as otherwise provided in this subtitle it is unlawful for any person to: (1) Willfully intercept, endeavor to intercept, or procure any other person to intercept or endeavor to intercept, any wire, oral, or electronic communication; (2) Willfully disclose, or endeavor to disclose, to any other person the contents of any wire, oral, or electronic communication, knowing or having reason to know that the information was obtained through the interception of a wire, oral, or electronic communication in violation of this subtitle; or (3) Willfully use, or endeavor to use, the contents of any wire, oral, or electronic communication, knowing or having reason to know that the information was obtained through the interception of a wire, oral, or electronic communication in violation of this subtitle. Cts. & Jud. Proc. §10-402(a)(1)-(a)(3). (Emphasis added)
Nowhere in the law are the words “tape” or “record” ever used.