Recording Phone Calls & Polygraph Testing
Recording phone conversations.
One issue that I frequently receive questions about is whether it’s permissible to record phone conversations that you are a party to? The answer varies from state to state. In the absence of more restrictive state law, federal law permits an individual who is a party to the telephone conversation to record it.
Some states require both parties to consent to the recording (two-party consent). Texas does not (one-party consent). The rub arises when there is an interstate call between a one-party state and two-party state. The California Supreme Court (.pdf) has held that in such a situation, two-party consent is necessary.
Recording a phone call can be a useful tool for avoiding misunderstandings and I have even used them in breach of contract cases where an oral agreement is disputed. If you are going to record, the best practice is to get the consent of the other party. If you’re not going to do that make sure you know the law of your state and the state you are calling.
Polygraph testing your employees.
Jon Hyman provided a primer on employee polygraph testing in the Ohio Employer’s Law Blog this past week. Frankly, I had never heard of the Employee Polygraph Protection Act of 1988 but it prohibits with limited exceptions:
- Requiring, requesting, suggesting, or causing an employee or prospective employee to take or submit to any lie detector test;
- Using, accepting, referring to, or inquiring about the results of any lie detector test of an employee or prospective employee; and
- Discharging, disciplining, discriminating against, denying employment or promotion, or threatening to take any such action against an employee or prospective employee for refusing to take a test, on the basis of the results of a test, for filing a complaint, for testifying in any proceeding, or for exercising any rights afforded by the EPPA.