Claire-ification

Are you a member with a question? Contact IA&B Vice President - Advocacy Claire Pantaloni, CIC, CISR to find the answer at 717-918-9202 or ClaireP@IABforME.com.

QUESTION:

Our agency’s phone system can record phone conversations. There is a message for incoming calls that the conversation may be recorded. Is there a requirement for outgoing calls also?

ANSWER:

Recording phone calls in agencies has become mainstream, and the recordings can be useful in an E&O defense. However, certain conditions apply when recording calls, and many agencies only address half of them. Let’s consider those requirements:

Notification: Do you need to tell your customers that the conversation may be recorded?

For our three states (i.e. Pennsylvania, Maryland, and Delaware), the answer is “yes.” This is because all three states are “two-party consent” states*, which means that both parties to the conversation must be informed that it is being recorded. If your agency records conversations, then when a person calls your agency, that person must be informed that the conversation will be recorded. You can do so by simply having a message in your automated attendance line stating that “the call may be recorded for quality assurance purposes,” or something to that effect. If the call is answered by a live person, the message should be given then.

Consent: Once they are notified, do you need to request explicit consent before recording the conversation?

No, not really. In our three states, consent can be implied by the person’s actions. In other words, when you initially notify individuals that the conversation may be recorded and they decide to stay on the line, the law considers that the individuals have consented to the recording.

What about outbound calls?

The duty to notify individuals that the call is recorded applies to all calls, not just inbound ones. While it may seem awkward to start an outbound call with the fact that the conversation is recorded, it is actually the way to comply with the requirement. Note that it can be done in a discreet and unintrusive way by simply making it part of the introduction. For example, “This is John Doe with the ABC Agency calling on a recorded line.” I will add that of the hundreds of calls I receive, only once did a member start the conversation that way. I’m sure many of the agencies recorded the call as a matter of course. Food for thought!

* The majority of states are actually “one-party consent,” which means that as long as one of the parties taking part in the conversation knows that the conversation is being taped, the recording is permitted.

This document is not a legal opinion and should not be relied upon as such. The intent of this document is to provide a general background regarding the topic or topics discussed, not to provide legal advice. Producers and agencies should consult an attorney regarding specific situations and specific questions with respect to the topic or topics covered in this document. Neither the Insurance Agents & Brokers nor any of its employees shall be responsible for any errors or omissions regarding any statements made in this document, nor any errors or omissions regarding any statutes, regulations, court rules, and/or any other government documents cited in this document.