Are offers of employment “advertisements” or “telemarketing” calls under the TCPA?

The Telephone Consumer Protection Act prohibits autodialed or prerecorded “advertisement” or “telemarketing” calls unless made with the prior express written consent of the recipient.  But are genuine offers of employment subject to this restriction?

The Federal Communication Commission’s regulations define “advertisement” as “any material advertising the commercial availability or quality of any property, goods, or services.”  The content of the call determines if the call is an “advertisement” and the distinction can be small.

For example, a call that seeks to hire individuals to sell a company’s products may be an advertisement if the individuals called are encouraged to purchase, rent, or invest in property, goods, or service, during or after the call.  But a mere recruitment call is not an advertisement.

The TCPA defines “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, which is transmitted to any person.”

Unlike the inquiry as to whether the call is an “advertisement,” the “telemarketing” inquiry focuses on the purpose of the call, rather than its content.  The TCPA does not require an explicit mention of the sale of goods or services where the implication of a sale is clear from the context of the call.

In Friedman v. Torchmark Corp., Friedman alleged that Torchmark sent a prerecorded message inviting him to call a telephone number to attend a recruiting webinar where Friedman could learn about Torchmark’s health insurance products and services in order to sell them.  Those who completed the webinar received an email with the opportunity to enter into a contract with Torchmark.  The email included fees that the individual would pay to sell its products and in exchange Torchmark would supply client lists.

Even though the messages contained an offer to participate in a free webinar, the court ruled that the webinar was not part of an overall marketing campaign to sell access to the customer database.  The court held the messages were not unsolicited advertisements:

the mere fact that after an individual enters into an independent contractor relationship with Defendant and the individual may choose to purchase the “Turning 65” list does not mean that Defendant’s message was advertising the commercial availability of goods or services.

Friedman also held that Torchmark’s faxes were not “telephone solicitations” because they did not encourage Friedman to invest money in Torchmark’s brokerage services.  Rather, the messages were intended to inform Friedman of the opportunity to enter into an independent contract position with Torchmark.

In Dolemba v. Illinois Farmers Insurance Co., Farmers sent a prerecorded message to Dolemba inviting him to attend a “town hall call offering a business opportunity promoting the commercial availability of insurance, goods, intangibles and services.”  While Dolemba argued it was an unsolicited advertisement because the business opportunity required a new agent to purchase goods and services and spend money that benefited Farmers, the court found that although the call informed Dolemba what he would be selling, insurance, without more, did not make the call an advertisement. 

Dolemba also held the circumstances in that case were similar to Friedman.  Farmers’ call invited Dolemba to participate in a “town hall call” during which he would learn about becoming a Farmers insurance agent.  Like Friedman, the call did not explicitly or implicitly encourage him to purchase, or invest in, any property, goods, or services.  Nor had Dolemba alleged facts indicating that Farmers’ recruiting call was part of a larger telemarketing promotion.  Dolemba failed to adequately allege that the call he received constituted “telemarketing” as the TCPA defines that term.

In Payton v. Kale Realty, Payton alleged Kale Realty sent unsolicited text messages to his cell phones in violation of the TCPA that stated “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 68 to unsubscribe.” 

Relying on Friedman, the court held the message received by Payton was not an advertisement under the TCPA as it contained no reference to the sale of goods or services.  The court determined it was irrelevant that Kale Realty did not hire real estate agents as employees but, rather, sponsored them as independent contractors.

Therefore, genuine offers of employment, as long as the called party is not charged a fee for applying, are not unsolicited “advertisements” as defined in the TCPA.  Messages inviting persons to attend a recruiting webinar wherein they can learn about a company’s products to potentially sell the products is similar to an offer of employment.  These calls are also not “advertisements” under the TCPA.

But if the purpose of a call is to encourage the person to make future purchases—even if the calls do not include an explicit mention of a good, product or service—the calls will be considered “telemarketing” calls under the TCPA.  Calls to inform persons of opportunities to enter into independent contract positions with a company are not “telemarketing” calls.

Thus, prerecorded calls that include genuine offers of employment are generally permitted to residential lines.  These calls are also permitted to cell phones with prior express consent.  

This article is not a substitute for legal counsel.  Each situation is fact specific and you should contact an attorney prior to engaging in any calling campaign.  Please contact me if you have further questions.