Listening In

What ministries should know about recording conversations

Recording a conversation may be beneficial to ministries for a variety of scenarios. For example, recording conversations during important meetings can promote accurate record keeping. Some ministries choose to record all incoming phone calls for quality assurance purposes, to help ensure that all calls are handled appropriately. Recording incoming calls also can help with ministry security measures.

Regardless of the reason behind a desire to record a conversation, the laws related to doing so are complicated and vary from state to state. Failure to follow them could lead to fines and other penalties. Before recording any conversation, ministries need to be aware of the laws that apply.

Which Conversations Can Be Recorded?

In general, state and federal laws only prohibit recording “private” conversations. Conversations are considered private if participants could reasonably expect that others would not overhear. Thus, conversations in public places are not considered private. Phone conversations are an exception because they are usually considered private regardless of where they take place.

Certain exceptions and exemptions in the law may allow you to record private conversations. The most common involve obtaining express or implied consent and the business extension exemption (for phone conversations).

Obtaining Consent

When obtaining consent to record a conversation, ministries should be aware that there are two versions of consent, depending upon state law:

  • One-party consent: Most states have adopted a one-party consent approach. Under the one-party consent rule, only one person in the conversation is required to consent to the recording. The fact that other parties to the conversation are unaware that they are being recorded is unimportant, as long as one person consents.
  • All-party consent: As the name suggests, the “all-party consent” rule that applies in some states requires every person in a conversation to agree to the recording process. (This rule is sometimes mistakenly referred to as “two-party consent.” This is not accurate, because it implies that only two people need to provide consent. All parties must consent.)

In states that allow one-party consent, ministries can typically obtain express consent from employees and volunteers by developing a policy that explains the situations in which conversations will be recorded. The policy should be included in the employee and volunteer handbook(s), and ministries should require employees and volunteers to sign an acknowledgement that they agree to the ministry’s recording policy.

In addition to a written policy, ministries can establish consent for recording conversations in the following ways:

  • Make an announcement at the beginning of meetings to let participants know they will be recorded.
  • Display signs near telephones that state calls will be recorded.

In a state that requires consent by all parties, additional procedures should be considered before a ministry attempts to record conversations. For example, if the ministry would like to record incoming calls in an all-party consent state, obtaining the caller’s consent prior to recording is necessary. Ministries can accomplish this in a variety of ways:

  • Ministry staff can answer calls by explaining that the ministry wishes to record the conversation. If the caller agrees, the staff member can begin recording and then confirm with the caller that he or she agreed to the recording.
  • Ministries can run a pre-recorded message on the ministry’s automated phone system that explains the call may be recorded. If a caller chooses to stay on the line, most courts will consider this implied consent.

Special Considerations

There are certain situations in which ministries should obtain the consent of all parties before recording conversations, regardless of state law.

  • Counseling: Ministries should obtain specific written consent from each person in counseling settings, regardless of general recording laws. Counseling ministries should carefully consider the risks and benefits of recording sessions. While recordings may provide counselors with an easy way to review the session, they also provide a permanent legal record that could be obtained down the road. For example, a recording could be obtained by a parent involved in a custody battle when the pastor has counseled the couple. Depending upon whether or not ministries want to open themselves up to these types of legal situations, they may find it best to not record counseling sessions.
  • Crossing state lines: Many conversations occur over state lines, via the internet and telephone lines. This can create a situation in which one person is in a one-party consent state and the other is in an all-party consent state. Since there is a risk that ministries in one-party consent states could be required to comply with the all-party consent rule, it would be wise for ministries to obtain every participant’s consent, in an effort to avoid any negative legal consequences.

Using the Business Extension Exemption

The business extension exemption may allow your ministry to record telephone conversations without obtaining consent. Some states’ statutes provide an exemption if the employer has a legitimate business interest in monitoring employees’ phone calls. For this exemption to apply, recordings:

  • Must be made only in the ordinary course of business.
  • Must be recorded by equipment obtained from a communications service provider.

The first element of the exemption, whether a recording is made in the ordinary course of business, is often established by the content of the conversation. If the conversation relates to the operations of the organization, the exception may apply. Some courts only allow employers to monitor a conversation long enough to determine this. Other courts hold that recording personal conversations is an unavoidable consequence of an organization-wide recording policy. They do not hold the employer responsible for intercepting these calls. Just to be safe, it’s a good idea for ministries to make employees aware of this practice (following the suggestions previously mentioned for communicating recording practices to employees).

The second element of the exemption requires that recording equipment be connected to the telephone system. While some states require that the equipment is provided directly by the telephone service provider, many allow other vendors to provide the equipment. Regardless of the source, if the recording equipment is intended for consumers and connected to the telephone system in a makeshift manner, the exemption is unlikely to apply.

Even when relying on the business extension exemption, it’s important to notify staff of this policy. The laws about recording conversations are varied and complicated. Ministries should work closely with a local attorney to develop or revise their polices involving recording conversations. This helps ensure that they comply with all applicable laws.