Considering rolling out texting for your talent acquisition team? If so, you probably have some valid questions and concerns around compliance and the law. 

The specific law that speaks to texting is called the Telephone Consumer Protection Act of 1991 (TCPA). Here’s what it says about texting: 

“The TCPA restricts telephone solicitations (i.e., telemarketing) and the use of automated telephone equipment. The TCPA limits the use of automatic dialing systems, artificial or prerecorded voice messages, SMS text messages, and fax machines. It also specifies several technical requirements for fax machines, autodialers, and voice messaging systems—principally with provisions requiring identification and contact information of the entity using the device to be contained in the message.”

So let's break down what TCPA restricts by definition. 

“TCPA restricts telephone solicitations (i.e., 'telemarketing')…” 

So, the question is this – Is texting a candidate about a relevant job opening considered 'telemarketing'?  

Below we've outlined several specific court rulings that add additional insight.

Uber was accused of violating the TCPA by text-messaging advertisements without “prior express written consent.”

The text message 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. 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.”  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.”

The judge states here that if a candidate provides their phone number as part of an application process, they are consenting to receive text messages from that company.

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 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”).

This  means, if a candidate posts their cell number on a job board, public profile, and social media page, texting them about a relevant job is not considered 'telemarketing'.

Additionally, if a candidate applies for a job and includes their cell phone number in the application, it is not considered 'telemarketing' for a recruiter to reach out via text message.

Based on the language in the TCPA, as well as legal precedent outlined above, recruiting activities do not fall under the category of 'telemarketing' as defined by the TCPA, so long as a candidate does one of the following:

It's important to adhere to legal guidelines – but it's very also important to be thoughtful and considerate while messaging candidates. Even if you are compliant with TCPA, if your communication feels spammy and non-personalized, you're more likely to get flagged as spam and filtered by phone carriers. So talk like a human and treat candidates with the respect they deserve.

If you're struggling to navigate through TCPA legislation, we recommend consulting your legal counsel. We're here to offer additional support if needed.