Text Recruiting Requires TCPA Compliance
Text Messaging is quickly becoming the go to way to communicate with job seekers.
It’s fast… 95% or more of text messages are opened and 37% of text messages are returned in 12 minutes. This means text messaging speeds up the communication process. Which gets your candidates into and through the recruiting process faster.
One area that few Talent Acquisition professional and TA Leaders need to understand, though, is that SMS messaging must be compliant with the Telephone Consumer Protection Act (TCPA). The TCPA regulates telemarketing calls, auto-dialed calls, prerecorded calls, text messages, and unsolicited faxes. Just like “Do Not Call” lists, candidates have opted-in and opt-out, rights.
TCPA = “Do Not Call” legislation
How Does the TCPA affect Recruiting with SMS?
All text messaging requires TCPA compliance. If you’re considering, or currently using text messaging for recruiting, here are a couple of things you need to know.
First off, like any legal info, this information is broad based, and not considered legal advice. Please contact a TCPA attorney, if you have questions. (consider Copilevitz & Canter. They know the TCPA.)
Second, a lot of recruiters think that “employment” and “recruiting” messages sent via sms / text messaging are not considered “telemarketing” or “advertising” under TCPA, and are therefore exempt, see case law below.
While the Kale Realty case below discusses this, it’s only part of the TCPA. Job seeker must still provided consent and still have the right to opt-out.
GoHire takes a conservative approach to TCPA requirements; requiring Opt-ins, Double-optins, and the ability to remove, or stop communications, via a company-wide TCPA Compliance solution.
Some Recent “Recruiting” TCPA rulings:
There’s a very active TCPA plaintiff’s bar, filing class action cases regularly. Each TCPA violation has a penalty of either $500, or $1,500, per text message sent. So, if you send 1,000 text messaging to candidates, that either never gave you consent, or requested to “opt-out”, that could cost you $1.5 million, plus attorney’s fees. As a result, GoHire text recruiting campaigns not only require “opt-ins”, but manages your companies TCPA “Do Not Message” database.
TCPA compliance and Recruitment Messages are not “Advertising” or “Telemarketing” under the TCPA – Kale Realty
In a 2016 case involving Kale Realty, Payton v. Kale Realty, LLC, Case No. 13 C 8002 (N.D. Ill.), the court ruled that “recruiting” is not specifically covered as advertising under the TCPA.
In the case, Kale Realty, a real estate brokerage firm, sent the following sms message to a former associate:
“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 69 to unsubscribe.”
The court ruled the message was not telemarketing or advertising, with the intent to sell a good or service, as defined by the law. See 47 C.F.R. § 64.1200(f)(1) (defining “advertisement” as “any material advertising the commercial availability or quality of any property, goods, or services”) and § 64.1200(f)(12) (defining “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”).
The court also ruled that because the plaintiff included their mobile phone number in numerous emails, that express consent was provided.
Uber was accused of violating the Telephone Consumer Protection Act by text-messaging advertisements without “prior express written consent.”
Sample text messages read “You’re invited to drive Uber. No schedule. No boss. Sign up now and get a $500 bonus.”
Uber claimed that they are not sending ads, but offers of employment, which don’t require written consent. In this case, dismissed in July 2015, U.S. District Court Judge Jon Tigar ruled that “Uber is primarily a transportation business that provides ride services, not a technology business,” and that their text messages were “an attempt to recruit drivers so that those potential drivers could provide services to riders.”
What about those who complete an Uber driver application and gave their cell phone number? Could they state a claim? Judge Tigar said that this was enough to demonstrate consent, even under the FCC’s previous announcements.
“The FCC’s most recent order, released on July 10, 2015, elucidated that there is not a specific method by which a caller must obtain prior express consent, only that the consent must be express and not implied or presumed. See 2015 FCC Order, ¶¶ 49, 52. Express consent can be demonstrated when the called party gives her wireless number to the person initiating the phone call “without instructions to the contrary.” Id., ¶ 52. For the foregoing reasons, the Court agrees with Uber that any plaintiff who provided her phone number as part of the Uber application process consented to receive Uber’s texts about becoming an Uber driver.”
What aboutAuto-Responses and SMS Chat bots:
FCC Rules that On-Demand Text Messages Do Not Violate the TCPA
On July 10, 2015, the FCC made a declaratory ruling, stating that no longer is TCPA consent disclosures (prior express written consent and that consent is not a condition of purchase) required as long as an SMS autoresponder meets the following criteria:
- The text message is requested by the consumer.
- The text message is a one-time only message sent immediately in response to a specific consumer request.
- The text message contains only the information requested by the consumer with no other marketing or advertising information.
This definition removes any doubt about the ability to auto-respond to consumer initiated messages. But, what about sms recruiting chatbots?
Based on the above ruling, GoHire protects clients by requiring “Double Opt-ins” on every first text messaging campaign. This way, no matter where the candidate originated, each candidate is provided the opportunity to Opt-in, or not.
For more information about Text Messaging and TCPA Compliant Text Recruiting Solutions, please contact a GoHire representative.