Staffing firms and employers using all the tools at their disposal to recruit workers may face increased risk following the recent Ninth Circuit notice in Loyhayem v. Fraser Financial. In Loyhayem, the court found that calling potential workers’ cell phones with prerecorded voicemail messages could violate the Consumer Protection by Telephone Act (TCPA), unless the workers had previously consented to the calls. The light at Loyhayem, prospects of “canvassing” using this method may subject companies to class actions involving the risk of substantial legal damages.
The TCPA is a federal law that restricts artificial or pre-recorded voice messages, that is to say “Automated calls” to residential telephone lines and cell phones, as well as calls made by an automatic telephone numbering system to cell phones.1
The TCPA specifically requires different rules for cell phones as compared to home phone numbers. In addition, for calls to mobile phones, including text messages, the TCPA distinguishes the type of consent required before placing the call depending on whether the call is for information purposes or for advertising purposes or telemarketing.
Violation of the TCPA results in high statutory damages of $ 500 per negligent violation and $ 1,500 per intentional or knowing violation. Thousands of TCPA files are filed each year, although to date the vast majority have not concerned employment issues.
Opinion of the lower court
In Loyhayem, the plaintiff alleged that he had received a pre-recorded call which left a voicemail message concerning the recruitment of the defendant company. The applicant alleges that the pre-recorded call was sent using an automatic telephone dialing system.2 He further alleged that he did not expressly consent to receive such a call and that he did not provide his telephone number to the respondent and asserted that the call contravened the TCPA.
The district court dismissed the plaintiff’s action for lack of declaration. The court ruled that the TCPA did not prohibit making automated recruiting calls to a cell phone number. The court focused on the implementing regulations regarding advertising and telemarketing calls to interpret the TCPA as only prohibiting robotic calls to cell phones when the calls are made without prior express written consent. and include advertising or telemarketing. The plaintiff appealed.
The opinion of the ninth circuit
The Ninth Circuit agreed with the plaintiff that the district court had misinterpreted the TCPA bans. The court concluded that the TCPA ban is broad and applies to “any call” to a cell phone, regardless of its content, unless the call is made for emergency purposes or with the prior express consent of the called party. The plaintiff alleged that the appeal he received from the defendant was not made for emergency purposes and that he did not expressly consent to receive it. Therefore, the plaintiff’s claims that the defendant robbed him without prior written or verbal permission was sufficient to survive a motion to dismiss.
Reaching its decision, the Ninth Circuit explained that with few exceptions, robocalls, including recruiting calls, made on a mobile phone require prior express consent, which can be provided orally or in writing.3 In contrast, automated calls to cell phones containing advertising or telemarketing content require the additional hurdle of prior express mail. writing consent.
Key points to remember
- As the Ninth Circuit noted, consent can be a defense against TCPA claims. As a result, employers may be able to mitigate risk by obtaining consent at the time of cell phone number collection, preferably in writing so that there is a trace that cannot be easily disputed later. by an applicant. Consider having a lawyer review the language and consent process to verify compliance with the TCPA.
- Be aware of the distinction between the type of consent: express prior consent (informational) vs. express prior writing consent (telemarketing / advertising). Prior express consent is required for all pre-recorded or artificial calls or texts sent by an automatic telephone numbering system, including calls made by employers or recruiters. The courts have already found a prior express consent of the act to provide his cell phone number.
- Simply posting an individual’s phone number on a biographical webpage, career networks such as LinkedIn, or otherwise in publicly available online materials may not meet the requirement of prior express consent to receive calls or texts to this number.
- Understand and manage providers who make calls to cell phones on behalf of the company. The plaintiffs argued that businesses are liable under the TCPA for calls made on their behalf by a third party if the call is made using an automatic telephone numbering system or an artificial or pre-recorded voice. and without the proper consent.
In addition to issues related to consent, there are other issues that employers need to consider in order to comply with the TCPA. If your business uses technology to place calls using an automatic telephone dialing system or an artificial or pre-recorded voice, consider hiring an experienced lawyer to review and assess the TCPA compliance process.