Employment Related Communications - A New Frontier for TCPA Class Actions?

This article was co-authored for insideARM by Ryan L. DiClemente, Esq. and Francis X. Riley III, Esq.

While most people think of the Telephone Consumer Protection Act (“TCPA”) as regulating telephone solicitations and junk faxes, a recent putative class action sought to expand the TCPA’s reach to a new frontier – employment related communications.  In Dolemba v. Kelly Services, Inc., plaintiff brought a putative class action against the defendant staffing company for alleged violations of the TCPA and the Illinois Consumer Fraud Act (“ICFA”) arising from a single phone call and voice message left on plaintiff’s cellular phone.  

Specifically,  plaintiff alleged that she previously applied for employment with defendant in March 2007 and indicated her interest in office related positions, such as accounts payable and accounts receivable.   Plaintiff filled out an employment application, provided her cellular phone number, and authorized the defendant “to collect, use, store, transfer, and purge the personal information that [she] provided for employment-related purposes.” Plaintiff was never offered employment by or through defendant and she never received any communications from defendant between the end of 2007 and February 2016.  On February 26, 2016, plaintiff received a call from defendant through an Automated Telephone Dialing System (“ATDS”).  Since she did not answer the call, defendant left a voice message soliciting individuals for employment as machine operators in certain areas.  Thereafter, Plaintiff filed a putative class action against the defendant for violations of the TCPA and the ICFA arising from this communication to her cellular phone.  

The defendant moved to dismiss plaintiff’s claims and to strike the class allegations.   Defendant argued that plaintiff consented to receive the subject calls regarding employment opportunities from defendant and therefore, plaintiff could not sustain her TCPA claims.  Plaintiff did not dispute that she provided her cellular number to defendant, but argued: (i) her consent expired long before she received the call from defendant in 2016; and (ii) the defendant’s call exceeded the scope of any consent she provided.  

The Court agreed with the defendant and found that plaintiff had “pleaded herself out of court by attaching her employment application, which indicates she consented to receiving calls from [defendant] for employment-related purposes.” The Court further held there were no allegations concerning plaintiff’s revocation of her consent and consent “does not expire at some point in time on its own.”  The Court also disregarded plaintiff’s contention, made upon information and belief, that the defendant treats applications as outdated after some period of time.  It held that these allegations cannot be construed as revocation by “reasonable means,” as silence or inaction cannot be an effective means of revoking one’s consent.  

The Court also rejected plaintiff’s contention that her consent was only limited to communications regarding the office-type positions identified in her application.  The Court found that the consent provided allowed defendant to “use her personal information for ‘employment-related purposes’” and defendant’s communications fell within the “broad consent” provided.  The Court ultimately dismissed her TCPA claim with prejudice finding that any further amendment would be futile.  

The Court likewise dismissed plaintiff’s ICFA claim.  It held that plaintiff’s receipt of “one prerecorded message does not rise to the level of an oppressive practice” under the ICFA and her alleged damages of “loss of time and…battery life” were so negligible they were unquantifiable.  The Court also rejected plaintiff’s attempt to support her ICFA by alleging defendant’s communication violated Illinois’ Automatic Telephone Dialers Act (“ITA”).  Specifically, the Court held that the defendant’s communications did not fall within the purview of the ITA’s definition of a “recorded message” because it did not solicit the sale of goods or services and provided information about a job opportunity.  

While this case represents a “win” for defendants, it also highlights a new area of potential risk for employers who communicate with applicants and/or employees through the use of an ATDS or prerecorded messages.  Employers should closely monitor these emerging risks and take steps to ensure their communication policies and procedures with their applicants and/or employees comply with the TCPA’s requirements. 

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Editor's note: Class actions against call centers will be an important topic covered at the upcoming insideARM First Party Summit, June 5-7 in Frisco, Texas. Gary Eidelman, Saul Ewing Partner, and Tim Collins, General Counsel at Convergent Outsourcing, Inc., will be speaking about Wage & Hour and Other Critical Employment Issues - What Should you be Doing to Protect Your Company?