As millennials move away from email for personal communications and rely more heavily on text messaging, employers must take advantage of this change to communicate and recruit younger candidates and employees.  Companies and messaging platforms must also ensure they comply with federal calling and texting laws.

The Telephone Consumer Protection Act (TCPA) prohibits autodialed or prerecorded “advertisement” or “telemarketing” calls or texts unless made with the prior express written consent of the recipient.  But are genuine offers of employment subject to this restriction?

“Advertisement” means “any material advertising the commercial availability or quality of any property, goods, or services.”  The content of the call or text determines if it is an “advertisement,” and the distinction can be small. 

For example, a call or text that seeks to hire individuals to sell a company’s products may be an advertisement if the individuals called are encouraged to purchase, rent, or invest in property, goods, or services, during or after the call.  But a mere recruitment call is not an advertisement.

The TCPA defines “telemarketing” as “the initiation of a telephone call or message for the purpose of encouraging the purchase or rental of, or investment in, property, goods, or services, which is transmitted to any person.”

Unlike the inquiry as to whether the call is an “advertisement,” the “telemarketing” inquiry focuses on the purpose of the call, rather than its content.  The TCPA does not require an explicit mention of the sale of goods or services where the implication of a sale is clear from the context of the call.  

A few court cases provide guidance on distinguishing the legality of these calls and texts.

In a 2013 California lawsuit, Friedman v. Torchmark Corp., a consumer alleged that a company sent a prerecorded message inviting him to call a telephone number to attend a recruiting webinar where he could learn about the company’s health insurance products and services in order to sell them.  Those who completed the webinar received an email with the opportunity to enter into a contract with the company.  The email included fees that the individual would pay to sell its products and in exchange the company would supply client lists.

Even though the messages contained an offer to participate in a free webinar, the court ruled that the webinar was not part of an overall marketing campaign to sell access to the customer database and the messages were not unsolicited advertisements.  The court also found that the company’s messages were not “telephone solicitations” because they did not encourage the consumer to invest money in its brokerage services.  Rather, the messages were intended to inform him of the opportunity to enter into an independent contract position with the company.

In a 2016 Illinois lawsuit, Dolemba v. Illinois Farmers Insurance Co., Farmers sent a consumer a prerecorded message to invite him to attend a town hall call offering a business opportunity promoting the commercial availability of insurance, goods, intangibles and services.  While the consumer argued it was an unsolicited advertisement because the business opportunity required a new agent to purchase goods and services and spend money that benefited the company, the court found that although the call informed the consumer what he would be selling, insurance, without more, did not make the call an advertisement. 

In Payton v. Kale Realty, Payton alleged Kale Realty sent unsolicited text messages to his cell phone in violation of the TCPA.  The texts stated “Kale Realty named 2013 Top 100 Places to Work by Tribune—We pay 100% on sales—Reply or visit http://joinkale.com to learn more! Rply 68 to unsubscribe.”  

But the court held the message received by the consumer was not an advertisement under the TCPA as it contained no reference to the sale of goods or services.  The court determined it was irrelevant that the realty company did not hire real estate agents as employees but, rather, sponsored them as independent contractors.

Therefore, genuine offers of employment, as long as the called party is not charged a fee for applying, are not unsolicited “advertisements” as defined in the TCPA.  

Messages inviting persons to attend a recruiting webinar wherein they can learn about a company’s products to potentially sell the products is similar to an offer of employment.  These calls are also not “advertisements” under the TCPA.

But if the purpose of a call is to encourage the person to make future purchases—even if the calls do not include an explicit mention of a good, product or service—the calls will be considered “telemarketing” calls under the TCPA.  Calls to inform persons of opportunities to enter into independent contract positions with a company are not “telemarketing” calls. 

Thus, prerecorded calls that include genuine offers of employment are generally permitted to residential lines.  These calls are also permitted to cell phones with prior express consent.  If you intend to communicate and recruit candidates via text messaging, you should ensure your company campaign and messaging platform comply with federal calling and texting laws including the TCPA.

This article is not a substitute for legal counsel.  Each situation is fact specific and you should contact an attorney prior to engaging in any calling campaign.  Please contact me if you have further questions.

About the author:

Kellie Mitchel Bubeck is an attorney in the Kansas City office of Copilevitz & Canter, LLC, and advises clients on federal and state telemarketing laws and First Amendment issues. In particular, Ms. Bubeck provides counsel regarding telemarketing registrations, do-not-call issues, and other consumer protection issues. 

She has defended companies in a variety of class and individual actions, including claims alleging violations of the Telephone Consumer Protection Act (TCPA), Telemarketing Sales Rule (TSR), and unauthorized call recording under California’s Invasion of Privacy Act (CIPA). 

Copilevitz & Canter provide up-to-date insight into legal issues involving nonprofits, fundraising, telemarketing and political calling.