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What employers should know about recording workers’ calls

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First, the appellate court accepted that substantial evidence did not support that HSBC had no intention to record the calls between the plaintiff and her daughter.

HSBC managers knew that personal calls – including confidential calls and calls received on a cellular or cordless phone – were happening, and the daughter’s manager permitted such calls, the appellate court found.

HSBC had a full-time recording system in its Salinas facility and had policies that did not prevent personal calls, regardless of whether the employees making them were subject to progressive discipline, the appellate court added. HSBC’s HR policy for electronic monitoring stated that employees “may use” telephones “for occasional non-work purposes” and that “personal calls may be recorded.”

A company’s “full-time recording of calls without adequate notice creates conditions ripe for potential liability under the Privacy Act, and workplace policies prohibiting personal calls may not mitigate that risk,” wrote Justice Joan Irion for the appellate court.

Despite these findings, the appellate court decided that it had to uphold the trial court’s judgment because substantial evidence supported that the plaintiff impliedly consented to being recorded.

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