Employers attempting to use every tactic to boost their workforce may be at risk of litigation following a recent ruling by the Ninth Circuit court.
In this ruling, the court determined that calling the cell phone of a potential recruit using a pre-recorded message is a possible violation of the Telephone Consumer Protection Act (TCPA) without the prior consent of the individual being called.
The TCPA is a federal law limiting the use of pre-recorded messages when calling residential and cell phones. The rules for these two types of phones are different, and the TCPA further distinguishes calls made with an informational intent from those made to advertise or for telemarketing.
In this case, the plaintiff alleged that they had received a call from the defendant that had left a pre-recorded message to voicemail discussing job opportunities. The case further alleges that the call was made using an automatic dialing system and that the plaintiff had never provided express consent to receive such calls and had not even provided the telephone number to which the call was made to the defendant.
However, the district court chose to dismiss the plaintiff’s suit, stating that it failed to make a claim.
According to the district court, the TCPA only forbids calls to a cell phone for advertising or telemarketing made without prior written consent. This would not apply to calls for recruitment.
The plaintiff appealed this ruling.
The Ninth Circuit Court sided with the plaintiff, holding that the prohibitions of the TCPA are broad and apply to all calls made to a cell phone no matter the content unless it is for emergency purposes or with the express consent of the person receiving it.
According to the Ninth Circuit, with few exceptions, a “robocall” to a cell phone, including those for recruitment, requires the express consent of the individual it is being made to either in writing or orally. If the call is for telemarketing or advertising, only written consent is acceptable. As a result, the Ninth Circuit held that the plaintiff’s allegations were capable of surviving a motion for dismissal.
This ruling makes “cold calls” for recruitment a far more risky option for employers. However, in its ruling, the Ninth Circuit provided that the consent of an individual is a possible defense for TCPA claims. This means that employers can reduce their risk in using this tactic by acquiring the preferably written consent of individuals when collecting the phone number. Courts have previously found the very act of providing one’s cell phone number to be prior express consent, but keep in mind that public posting of one’s cell phone number such as on a career networking website is not the same as providing it for the purposes of the TCPA.