Steering Clear of Federal Telemarketing Fines

By Ronald M. Jacobs, Esq., and Annie H. Lee, Esq.
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In this scenario, a woman threatens to report a recruiter for calling her cellphone without her consent, per the do-not-call laws. What do these laws entail? Do these rules apply to staffing companies? Will the recruiter and his firm be held legally responsible if a complaint is filed?

Robert Ransom, a search and placement professional at a Missouri, KS-based staffing firm called FreshStart, has been a top recruiter at the company for more than eight years.

While making calls to potential candidates one day, Ransom calls Trisha Tinsley, who submitted her résumé to FreshStart about a year earlier.

“Hi, Ms. Tinsley, this is Robert,” he says. “I’d like to talk to you about your résumé and potentially working for one of FreshStart’s clients.”

“You have the wrong number,” the voice on the line responds. “And I’m very happy in my current position. How did you get my number?” As it turns out, Ransom had dialed the correct number, but the woman he reached was Melissa Mikelson, not Trisha Tinsley.

“Your number is on a résumé that was submitted to our company,” Ransom replies.

“Clearly there’s been a mistake,” Mikelson retorts. “And I did not give you permission to contact me. In fact, I talked to one of your colleagues about this same situation just last week.”

“I’m sorry, ma’am, I didn’t…,” Ransom starts before Mikelson cuts him off.

“There are do-not-call laws in place for exactly these types of situations,” she blurts. “And if I hear from you or anybody at your company again, I will report you.”

Mikelson hangs up, and Ransom wonders: “Could my staffing firm actually get into legal trouble for a call like this? What else should I know about making these kinds of calls?”

To get his answer, Ransom turns to his most trusted source on laws affecting the industry—the American Staffing Association. ASA has just published an issue paper called “Know the Laws That Govern Phone Calls, Faxes, and Emails.”

He learns that there are many federal rules that apply in these type of situations: The Telephone Consumer Protection Act regulates calls and faxes; the Telemarketing Sales Rule regulates calls; and the CAN-SPAM Act regulates commercial email messages. The TCPA is enforced by the Federal Communications Commission and through private lawsuits and class actions, while the TSR and CAN-SPAM Act are enforced by the Federal Trade Commission as well as through private lawsuits and class actions.

These rules fit atop myriad state do-not-call laws, which have similar operable definitions to the federal rules. Numerous petitions have been filed with the FCC asking that these state laws be preempted, but the FCC has ignored these requests for years.

Fortunately for Ransom and other staffing professionals, many of their communications with potential job candidates are not subject to all of these restrictions—though some do apply.

The Telephone Consumer Protection Act regulates calls and faxes; the Telemarketing Sales Rule regulates calls; and the CAN-SPAM Act regulates commercial email messages.

What Is the Purpose of the Call?

The TCPA and TSR impose different restrictions on calls depending on the purpose of the call. Calls that are “telephone solicitations” or “outbound telephone calls” are subject to more restrictions than calls that do not fit these definitions. The definitions of these terms are similar.

The TCPA defines a telephone solicitation 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 TSR defines an outbound call as “a telephone call initiated by a telemarketer to induce the purchase of goods or services.” For this article, we will refer to both as “telemarketing.”

It has always been fairly clear that calls to job seekers are not telemarketing because there is no sale of a good or service involved, and both the FTC and FCC have provided express guidance on this point as well.

In a letter to a firm that is a “recruiting company that calls consumers to offer them employment opportunities,” the FCC explained, “If you do not ask people you call to make a purchase or pay a fee, then your calls would not be subject to” the do-not-call rules.

Thus, calls to job candidates, including initial calls to schedule screening interviews and later calls when positions become available, are not “telemarketing.” We will refer to these as “staffing” calls. Since Ransom was calling a candidate to talk about employment opportunities and not to sell anything, his call would be considered a staffing call, and thus not subject to the do-not-call rules.

However, it is important to remember that calls to sell career placement services to individuals are telemarking. For example, a call to provide counseling services or to edit a résumé would be covered if the person you are calling will be paying for those services.

How Are the Calls Made?

Autodialed Calls to Cellphones: Calls placed to cellphones using an autodialer require consent from the called party. As long as the content of the calls is not for telemarketing (e.g., staffing calls), then consent may be obtained orally. If someone submits a résumé or fills out a job application with his or her cellphone number written on it, then this should be sufficient to constitute “prior express consent” to receive job-related calls because it is clearly that person’s expectation that by providing the number, he or she will receive calls related to employment opportunities.

Manually Dialed Calls to Cellphones: If a company manually dials calls to cellphones—that is, it does not use an autodialer—then no special consent is needed. If the call is made for staffing purposes, nothing further is needed; if it is a telephone solicitation, then the do-not-call list must be checked.

Prerecorded Message Calls to Landlines or Cellphones: The TCPA also prohibits making prerecorded message calls (commonly called robocalls) to landlines and cellphones without express consent.
If the calls are for telemarketing purposes, then prior written consent (as described above) is required. For nontelemarketing robocalls to landlines (e.g., staffing calls), no consent is needed. For nontelemarketing robocalls to cellphones, consent, as discussed above, is needed.

Text Messages to Cellphones: The FCC views text messages as a form of autodialed call. Therefore, prior express consent is required before sending a text message. If the text message is for telemarking purposes, then consent must be in writing. Other text messages do not require written consent.

Since Ransom manually dialed Mikelson’s cellphone, no consent from her was required.

The FCC views text messages as a form of autodialed call. Therefore, prior express consent is required before sending a text message.

Whose Number Is It?

Finally, the FCC has discussed what happens when a person changes numbers, as was the issue for Ransom. He had a phone number for Trisha Tinsley, who provided consent to contact her by putting the cellphone number on her résumé, but when he called the number it no longer belonged to Tinsley, but to Mikelson.

The FCC’s guidance on this topic applies only in cases where an autodialer or prerecorded message is used to place a call to a person who has not given consent. Callers in this situation (which would include text messages) must take steps to ensure that they are calling the right person, based on suggestions from the FCC. The FCC also says that companies have one free pass at calling a reassigned number, which should, in the agency’s mind, be enough to learn of the change. Ransom is again safe from the law because he called Mikelson manually rather than using an autodialer or prerecorded message.

More information about the laws, as well as guidance on faxes and email messages, is available through an ASA issue paper, “Know the Laws That Govern Phone Calls, Faxes, and Emails,” on americanstaffing.net.


Ronald Jacobs is a partner in the regulatory practice group of Venable LLP and Annie Lee is an associate in the group. Send feedback on this article to s******@americanstaffing.net. Follow ASA on Twitter @StaffingTweets and on Instagram @americanstaffingassociation.

This material is not intended, and should not be relied on, as legal advice. ASA members should consult with their own counsel about the legal matters discussed here.