Consumer advocates are concerned that Dermalogica and other companies may be breaking the law on recording phone calls. Since the skincare product company is headquartered in California, it is subject to the state’s two-party consent law.

To guard against any legal repercussions from failing to get the permission of both, or all parties on a call before recording, many U.S. companies have a prerecorded warning on the voice mail menu. We’ve all heard this caveat when calling customer support phone lines:

“This phone call may be recorded for training or quality control purposes …”

What is a Two-Party vs. One-Party State?

A two-party state means that all parties on a telephone call must give consent before a phone call can be recorded. In California, the law on recording phone calls pertains to both incoming and outgoing calls. Just because the customer calls a business support line does not mean the company is ‘off the hook’ when it comes to complying with the law.

Dermalogica is headquartered in California, but does business throughout the U.S. and in 80 countries, so it should be familiar with each state’s privacy laws.

According to Lifehacker.com, California is one of 11 states that require “two-party” or “all-party” consent prior to recording. Dermalogica has been accused of not always asking for permission to record customer service phone interactions or not always providing the prerecorded warning of intent to do so. The ten other “two-party” statesare:

• Connecticut
• Florida
• Illinois
• Maryland
• Massachusetts
• Montana
• Nevada
• New Hampshire
• Pennsylvania
• Washington

What Does Implied Consent Mean?

When companies like Dermalogica have a prerecording on their voice mail warning of the intent to record the customer service phone call, it gives the caller the right to “opt-out.” If the caller remains on the line after hearing the warning, legally speaking, the company is covered. The customer has given consent by continuing to engage.

Why Does State Law Override Federal Law?

Sometimes federal law runs parallel to state law in both spirit and intent. U.S. wiretapping code says it’s illegal to record a conversation that is reasonably expected to be private.

In California, for example, “if you are recording someone without their knowledge in a public or semi-public place like a street or restaurant, the person whom you’re recording may or may not have ‘an objectively reasonable expectation that no one is listening in or overhearing the conversation,’ and the reasonableness of the expectation would depend on the particular factual circumstances,” according to the Digital Media Law Project. “Therefore, you cannot necessarily assume that you are in the clear simply because you are in a public place. “

Indeed, California call recording laws are particularly strict. These laws are part of the state’s privacy laws, which are included as part of its state constitution.

It’s a different situation when a participant in a conversation gives  “permission” to record a conversation that another party on the call believes is a private communication. In a “one-party” state, this action might be acceptable, but in California and other “two-party” states, this activity would be illegal.

Two-party consent is a bit of a misnomer, because it actually requires that all parties be informed of the recording taking place, rather than just two. California also requires that if someone calls from a state with one party consent, they must still abide by California’s stricter rules.

Is Call Recording Common?

Call recording and monitoring is just not the stuff of movies and is actually quite common. Even though California law does limit some call recording, many calls may still be recorded. Most US customers have contacted a customer service line by phone at some point in their life, so most people have likely been recorded during this process.

If you have called a business’s customer service line, you may have been recorded. Businesses often record phone calls to help improve customer experiences, by using the recordings to study consumers’ preferences, train employees, or improve processes.

You may have given your consent to be recorded, just by staying on the line. To comply with California privacy law, many businesses alert customers who call a customer service line that their call may be recorded. If a customer chooses to stay on the line after they have been alerted, this can be taken as an understanding and consent to be recorded.

In some cases, businesses may monitor calls, but not record them. This may occur if a supervisor wants to observe customer service practices or assist a colleague with a customer service issue. Per California law, businesses must notify a customer not only if they are recorded a call, but if they are monitoring it.

A number of companies are currently under investigated for potentially illegally recording phone calls, including but not limited to:

• Dermalogica
• Foster & Smith
• Jimmy Choo
• Romano’s Macaroni Grill
• Smith & Wesson
• Swarovski
• Umpqua Bank
• United Airlines Pet Safe
• Vera Bradley
• More