The Recruiter’s Guide to the TCPA & Texting

What is the TCPA and Why Should Recruiters Care?

The TCPA prohibits the use of automated telephone dialing systems (ATDS) and artificial or prerecorded voices when making calls or sending text messages to consumers unless you have their express consent. For recruiting agencies, this means obtaining consent before sending text messages for client outreach, or to candidates for marketing purposes, job alerts, and so on.

Violating the TCPA can be expensive. Penalties range from $500 to $1,500 per violation, so a single text message campaign sent to thousands of recipients without proper consent could result in millions of dollars in fines. Additionally, non-compliant agencies risk damage to their reputation and potential blacklisting by mobile carriers and texting platforms if the FCC so chooses.

Key TCPA Requirements for Recruiters

• Express Written Consent
  The TCPA says you must obtain express written consent from individuals before sending them marketing text messages. This consent must be clear, unambiguous, and tied to a specific campaign or purpose. If you’re using a checkbox on a web form to collect the consent, it must be un-checked by default so that consent is active and not passive. You’ll want to make sure this consent is documented for later reference if needed.
• Opt-Out Mechanism
  The TCPA requires businesses to provide a clear and easy way for recipients to opt out of receiving further text messages. Typically this comes in the form of sending a specific keyword, such as “stop” back to the sender to trigger an opt-out. Once someone has opted out, the request must be honored promptly – typically within ten days if not immediately.
• Time Restrictions
  The TCPA generally prohibits sending text messages before 8 a.m. and after 9 p.m. in the recipient’s local time zone. However, some states, like Florida, Oklahoma, and Washington, have even stricter time restrictions.
• Identification Requirements
  Text messages must clearly identify the sender and their business, as well as how to contact them. This is a good practice for transparency and trust in addition to compliance.

Are Recruiters Exempt from the TCPA?

The TCPA makes a distinction between “advertising” and “transactional” text messages and applies slightly different consent requirements to each. Advertising texts that promote recruiting services or seek to attract new clients or candidates require express written consent before being sent. Transactional texts, such as interview confirmations, job alerts, or payment notifications are given a bit more leeway, as candidates or clients might assume they will be receiving that sort of message by providing you their phone number and therefore don’t need to give express consent.

While the TCPA’s definition of “advertisement” has been the subject of legal debate, where court challenges have arisen the rulings suggest that genuine offers of employment might not be considered “advertisements” unless the applicant is being charged a fee of some kind. However, texting a potential client about contracting with your business to fill a role would be considered advertising.

However, recruiters should tread conservatively when texting because the lines between recruitment and advertising can get blurry. For example, texting a candidate about a job while also touting the your firm’s successful placement rate could be deemed “advertising” if a complaint were to be made. And it goes without saying that texting any phone number not supplied to you directly by its owner, such as candidates pulled from a sourcing tool, purchased list, or third-party database, would be considered non-consensual.

The only texts that are generally exempt from the TCPA’s consent requirements are automated messages and replies directly initiated by your jobseeker/client. These one-time responses that provide the information requested without any marketing or advertising content can be sent without asking for consent.

The key takeaway is that TCPA compliance is required for both advertising and transactional communication. Obtain and log consent before texting (especially if you plan to send marketing content), provide clear opt-out mechanisms, and handle opt-out requests as promptly as you can.

TCPA Rule Changes in 2025

New rules will be affecting how recruiting email and texts work starting this year. Two significant changes to the TCPA are set to take effect early in 2025 which could have potential impacts for recruiting agencies’ text communications:

• One-to-One Consent (Effective January 27, 2025)
  This rule will restrict the use of “multi-party consent.” In general, this governs scenarios such as shopping comparison sites, where consenting to texts from that site will no longer give implied consent to texts from every vendor they are recommending. For recruiters, this means ensuring that consent obtained from candidates or clients is only used for communication with your specific agency and for the purpose outlined during the consent process. If you’re part of an industry group or split network, you can’t rely on consent given to that wider organization to afford you consent as well. You’ll need direct consent from the person you’re texting.
• Expanded Revocation Rules (Effective April 11, 2025)
  These rules broaden the ways consumers can revoke their consent beyond simply texting a keyword back to the sender. Recruiters must be prepared to promptly honor all requests to revoke consent, regardless of what method they’re sent by, and to cease all communication within 10 business days. The only allowed communication after the request is a single reply to confirm or clarify the request to revoke consent.

Best Practices for Recruitment Texting

Here are a few best practices to follow if your recruitment communication plan includes texting:

• Consult Legal Counsel
  The TCPA is a complex law, and its interpretation can vary. Recruiting agencies should consult with experienced legal counsel to ensure their texting practices are fully compliant with the TCPA. Furthermore, the laws in individual states and outside of the US may differ, so before sending any broad text messages it’s wise to know where the recipients are.
• Implement Robust Consent Management
  Develop a system to obtain, document, and manage consent for all text message communications. This system should include clear disclosures, opt-in mechanisms, and easy-to-follow opt-out instructions.
• Use a Dedicated Texting Platform
  Avoid using your personal cell phone for recruiting-related texting. A dedicated texting platform will include the required opt-in/opt-out management, message scheduling, and automated compliance tools you need.
• Stay Informed About Legal Updates
  The TCPA landscape is constantly evolving. Stay abreast of any new rulings, interpretations, or amendments to ensure ongoing compliance.

By understanding the TCPA and its implications, recruiting agencies can leverage the power of texting while safeguarding themselves from legal risks and ensuring ethical communication practices.