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TCPA in the Workplace: An Employer’s Guide to Telecom Laws Impacting Employee Outreach
Monday, March 8, 2021

One of the nice things about serving as your own webmaster is I can monitor the search terms that lead to tcpaworld.com visits, giving me pretty good insight in terms of what’s on YOUR minds out there.

I’ve seen a number of recent queries regarding the TCPA and the workplace; specifically does the TCPA apply to employers trying to contact their employees using automated technology.

Although the short answer is “yes” there is actually a bit of nuance to this, so let’s spend a few minutes together.

First, there is no question that the Telephone Consumer Protection Act (“TCPA”) can, and often does, apply to messages sent by employers to employees. This is true even if the message is informational in nature and not telemarketing.

The most famous example involved Rubio’s Fresh Mex Grill. Rubio’s sent alerts to its employees related to food safety concerns at its restaurants that they should be aware of. Apparently some of the employee phone numbers changed hands without Rubio’s knowledge, resulting in a bunch of alerts being sent to the new owners of the phone–folks who did not work at Rubio’s.

Rubio’s was sued in a class action lawsuit and brought the issue before the FCC for assistance. The FCC denied Rubio’s the relief sought, finding that the messages did not fall within any exception to the TCPA and were not exempt under a “good faith” exception–the FCC refused to acknowledge any such exception exists.

Now arguably the Rubio’s situation is not directly on point because the messages were actually being received by third-parties. But, Rubio’s forms a starting point for employers to be aware of– even if consent can otherwise be obtained the risk of wrong number calling militates against the use of alert-style blasting to employees.

So what about messages actually sent to current employees?

The TCPA contains no exemptions for messages sent to employees, but employees can consent to certain types of messages rather easily.

Backing up, the TCPA applies to all prerecorded and artificial voice messages– as well as all calls and text messages sent using an ATDS–made to a cell phone. It does not matter whether the cell phone is used for business purposes. So an employee’s cell phone would not be fair game, for instance, just because its a business cell phone.

That’s the bad news.

The good news comes in a couple of flavors.

First, employers can easily obtain the needed consent from employees for certain types of calls. Anytime an employer desire to send messages to employees that are informational and related to that employee’s job responsibilities the employer only needs to show: i) that the employee supplied the phone number directly to the employer in connection with his or her employment; and ii) (preferably) that the employee acknowledged the employer’s right to use the number for that purpose in some manner (i.e. as part of a policy or procedure or onboarding document.)

Truthfully, however, the rules around consent for non-marketing calls are sufficiently loose that an employer probably does not even need the employee’s direct acknowledgment of the right to use the number in any particular way. The mere fact that the employee supplied the number directly to the employer is enough for most non-marketing purposes.

There is more good news.

If the message is not marketing in nature the rules of the DNC list and the Telemarketing Sales Rules will not apply to the employer. This means that the employer can contact the employee regardless of whether the employee’s number is on the National DNC list. Plus if the number is used for business purposes by the employee that’s one more reason why the employer might be free to ring the employee–such numbers are not subject to DNC protection.

Now let’s chat about a couple of risks here.

First, as already shown in the Rubio’s example, wrong number calling is a serious issue and can give rise to massive liability. Large companies, then, should go easy on mass-blasting employees, or else retain vendor solutions needed to verify phone subscribership.

Second, MARKETING calls to employees are a real no no. I know it can be tempting to monetize a large employee base by encouraging them to use company products or services of a partner organization that pays for access to employee lists but –don’t do it. Unless you’ve obtained express written consent–that must be conspicuously disclosed and separately signed–automated marketing efforts to employees (including via automated text or pre-recorded contact) can result in huge penalties under both the TCPA and the TSR. Don’t do it!

One interesting trick to keep in mind, however. If the employer pays for the employees cell phone–i.e. the employer is the subscriber to the line–then the it can likely consent for the employee. In other words, since the employer pays for the phone the employee is somewhat at the employer’s mercy in terms of what messages he/she will be subject to. Plus the employer will be safe from wrong number calling since it will obviously know when the number changes hands. Its a pretty neat trick and one to keep in mind for employers who think that communicating with their employers via automated means is critical to their mission.

One last note– many companies are turning to automated messages in an effort to recruit new employees. While these messages are generally deemed to be informational in nature–i.e. written consent is not required–the consumer (future employee) still must provide the number directly to the caller for a reason closely related to the purpose of the call. In other words, you can’t cold call potential future employees using automated equipment–but you can use such equipment to call back, for instance, a job applicant on a number supplied via an online resume. (Probably. The law here is a little grey, however, as at least one court has suggested that recruitment calls are marketing– but I don’t think that’s quite right.)

So there you go– TCPA applies to calls to employee cell phones, but consent can be easily obtained in most instances. Where marketing is involved it is best to steer clear–unless you want to pay for your employee’s cell phones. And don’t cold call potential employees–wait for them to come to you.

And remember–violating the TCPA will cost your organization $500-$1,500.00 per call and PERSONAL liability for officers/directors/compliance folks is possible so you definitely want to have outside counsel looking over your process before it is deployed.

Always happy to chat about this stuff in greater detail.

Stay safe out there TCPAWorld.

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