Pennsylvania wiretap law and job interviews: all-party consent in practice

Pennsylvania's Wiretap Act requires the consent of everyone on a call or in a private conversation before it is recorded. The exception a recruiter relies on, 18 Pa.C.S. § 5704(4), makes interception lawful only "where all parties to the communication have given prior consent," and an unlawful interception is a third-degree felony under § 5703. A candidate who was recorded without agreeing can also sue for at least $1,000. The practical rule for any interview with a Pennsylvania end is to say you are recording or transcribing and get a yes before you start.

For a quick answer on a specific call, try the consent checker.

Below: what the statute covers, how it applies to phone, video and in-person interviews, the exceptions people misread, penalties and civil damages, and how Pennsylvania courts have treated calls that cross the state line.

What the Wiretap Act covers

The offense is in § 5703: a person is guilty of a felony of the third degree if they intentionally intercept, endeavor to intercept, or procure someone else to intercept "any wire, electronic or oral communication," or intentionally disclose or use the contents of a communication they know or have reason to know was unlawfully intercepted.

The definitions in § 5702 set the reach:

• Intercept is the "aural or other acquisition of the contents of any wire, electronic or oral communication through the use of any electronic, mechanical or other device." Transcribing a call acquires its contents, so treat a transcription tool the same as a recorder.
• Oral communication is one "uttered by a person possessing an expectation that such communication is not subject to interception under circumstances justifying such expectation." An interview in a closed room is the kind of conversation that expectation usually covers.
• Electronic, mechanical or other device excludes ordinary telephone equipment furnished by a provider and used in the ordinary course of business. A recording app, a call recorder or transcription software is not that equipment.

How it applies to interview formats

"Prior" means before. If your tool starts capturing as soon as you join, either start it only after the candidate agrees, or open with the notice so the question and the answer are the first things captured, and delete the few seconds if the answer is no.

Exceptions people misread

Section 5704 lists many exceptions, most of them for law enforcement and communications providers. Three are worth knowing because they are sometimes cited as covering business calls:

• Telephone marketing and customer service, § 5704(15). Personnel of a business "engaged in telephone marketing or telephone customer service" may intercept those calls "for the sole purpose of training, quality control or monitoring by the business, provided that one party involved in the communications has consented." A candidate interview is not a marketing or customer service call, and relying on this to record candidates is a stretch we would not take.
• Utilities, § 5704(6), and excavation calls, § 5704(7). Narrow exceptions tied to specific industries, with notice requirements of their own. Neither applies to recruiting.
• All-party consent, § 5704(4). This is the one that fits interviews, and it requires everyone.

Penalties and civil damages

Criminally, § 5703 grades interception, disclosure and use alike as a felony of the third degree. Civilly, § 5725 gives the person whose communication was intercepted, disclosed or used a claim for:

• "Actual damages, but not less than liquidated damages computed at the rate of $100 a day for each day of violation, or $1,000, whichever is higher";
• punitive damages; and
• a reasonable attorney's fee and other litigation costs reasonably incurred.

Note that disclosure and use are separate violations. Forwarding a recording of a candidate to a client, or quoting it in a submittal, can create exposure even for someone who did not make the recording, if they knew or had reason to know it was made unlawfully.

Calls that cross the state line

Pennsylvania courts have not always applied Pennsylvania's rule to calls recorded elsewhere. In Larrison v. Larrison, 750 A.2d 895 (Pa. Super. 2000), a call from Pennsylvania was recorded in New York by a participant. The Superior Court applied New York's one-party law, reasoning that "New York possessed the greater interest in allowing its citizens to record telephone conversations lawfully with only the consent of the sender or receiver," and held the recording admissible.

Do not read that as permission. It is one decision about admissibility in a custody case, reached by weighing the two states' interests on its facts. Other states' courts use different tests: California's Supreme Court applied California's all-party law to calls recorded in Georgia, and Florida's courts look to where the words are spoken. A recruiter recording from Pennsylvania is also bound by Pennsylvania law for what they do there. The overview is in recording calls across state lines.

When the candidate is the one recording

The statute applies to everyone, not only to employers. A candidate in Pennsylvania who records an interview without the interviewers' agreement is in the same position under § 5704(4) as an interviewer who records without theirs. If a candidate asks to record, decide in line with your policy and give every candidate the same answer. If you agree, the consent has to run both ways: every interviewer on the panel should agree too, before the call. If you suspect a candidate is recording without saying so, it is reasonable to ask directly and state your policy, without treating the question as part of the assessment.

If your team has been recording without asking

Change the practice from the next call: add the notice to invitations and the spoken line to every interview. Then speak to a lawyer before doing anything with recordings that already exist. Deleting them in a hurry can create a separate problem if a complaint or legal hold is already in view, and continuing to use or share them can be its own violation under § 5703. That decision should be made once, deliberately, and written down.

A consent line that works in Pennsylvania

"Before we get into it: I'd like to [record / transcribe] our conversation so
I have accurate notes for the [role] position. It's used only for this role,
seen by [who], and kept for [period]. If you'd prefer I didn't, just say so
and I'll take notes by hand; it won't affect your application.
Is that OK with you?"

[Clear yes: start or continue. No, or unclear: capture stays off.]

For the strict version that captures the candidate's answer on the record, panel wording and written notices, see the interview recording consent script.

Checklist for interviews with a Pennsylvania end

1. Ask every candidate before capture starts, whether the call is by phone, video or in person.
2. Include every interviewer in the consent question, and agree internally first.
3. Do not rely on the customer service exception for candidate calls.
4. Do not forward or quote a recording you are unsure was made with consent.
5. If a candidate declines, stop and take notes by hand, and log the decision neutrally.
6. Treat transcripts exactly like recordings, because the statute is about acquiring contents.
7. Write the rule into your policy and date it, so the whole team follows the same one.

The consent rules for the other all-party states are in the two-party consent states table, and the wider picture, including AI rules that apply on top of recording law, is in is it legal to record a job interview.