Recruiting Texts and the TCPA: When Job Messages Create Exposure

A text offering someone a job usually isn’t telemarketing. Federal courts have held that recruiting messages don’t encourage the recipient to buy anything, and that reasoning should keep most of them outside the Do Not Call rules. But an automated or prerecorded recruiting message to a cell phone still needs the recipient’s consent, and the Ninth Circuit has held that the message’s content doesn’t change that. Staffing firms that text at volume carry real exposure there, and more defenses than a demand letter lets on.

Is a job offer text a telephone solicitation?

Usually not, because the employer is asking to buy the candidate’s labor, not selling the candidate something.

The Telephone Consumer Protection Act 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,” in 47 U.S.C. § 227(a)(4). The FCC’s rules use the same words for “telemarketing,” and they define an advertisement as “any material advertising the commercial availability or quality of any property, goods, or services,” in 47 C.F.R. § 64.1200(f).

Two federal district courts applying those definitions to recruiting messages sided with the sender. In Gerrard v. Acara Solutions, the plaintiff alleged that a staffing company sent her more than 240 autodialed texts, including 210 in a single day, most of them repeating the same contract job opening. The federal court in Buffalo dismissed her autodialer claims with prejudice in June 2020, writing: “The text messages at issue alert Gerrard to an employment opportunity. They do not constitute advertisements or telemarketing within the meaning of the TCPA’s implementing regulations.”

A San Francisco federal court reached the same conclusion about Uber’s driver-recruitment texts in Reardon v. Uber Technologies, holding that the texts “were sent to recruit drivers, not to promote the commercial availability of Uber’s transportation” services. Both are district court decisions, so neither binds another court, and the magistrate judge in Gerrard had recommended denying the motion to dismiss before the district judge rejected that recommendation. I think the district judges got it right. When a company asks someone to come work for it, the company is the buyer.

Neither case was a Do Not Call case, but the reasoning should carry over. The Do Not Call Registry rules and the 8 a.m. to 9 p.m. calling window apply to telephone solicitations to residential subscribers, which can include cell phones, and the internal do-not-call list requirement applies to telemarketing calls to residential subscribers. A plain job offer shouldn’t trigger either.

When does a recruiting text become a sales message?

When it asks the candidate to pay for something, or carries a pitch along with the job.

The Ninth Circuit held in Chesbro v. Best Buy Stores that prerecorded calls about expiring reward certificates were telemarketing because they encouraged future purchases, even though they also carried program information. The court said: “Any additional information provided in the calls does not inoculate them.” A recruiting text can fall into the same trap.

The clearest warning sign is an opportunity that costs the candidate money. If a recruit has to buy a starter kit or pay for classes you sell, the message starts to look like it encourages a purchase, which is the statute’s language. A text that announces an opening and also promotes a product is a dual-purpose message, and the marketing half can control.

Staffing firms have a second issue. They send candidate texts, which buy labor, and they send sales texts to hiring managers, which sell staffing services. The second group is telemarketing under the FCC’s definition. I’d keep the two programs on separate numbers and separate consent records.

Do automated texts to applicants need consent even if they aren’t marketing?

Yes. Consent is required whether or not the message is marketing, and content changes only the kind of consent needed, apart from a few narrow FCC exemptions.

The statute makes it unlawful “to make any call (other than a call made for emergency purposes or made with the prior express consent of the called party) using any automatic telephone dialing system or an artificial or prerecorded voice” to a cell phone, under § 227(b)(1)(A)(iii). The Supreme Court noted in Campbell-Ewald Co. v. Gomez that it was undisputed a text counts as a call under this provision. Our post on the emergency-purposes exception covers when that exception applies.

The Ninth Circuit applied that rule to a recruiting voicemail in Loyhayem v. Fraser Financial and Insurance Services (2021). According to the opinion, the plaintiff alleged that a financial firm left him a prerecorded voicemail inviting him to talk about joining it as an advisor. The trial court dismissed the case because the call didn’t involve telemarketing. The Ninth Circuit reversed, explaining that the lack of marketing only meant the stricter written-consent rule didn’t apply: “Loyhayem’s case is still governed by paragraph (a)(1), which requires that prior express consent have been given either orally or in writing.”

That matters for how far Gerrard reaches. Gerrard dismissed an autodialer claim by treating the advertising and telemarketing question as dispositive, and the Ninth Circuit read the regulation differently in Loyhayem. In California and the rest of the Ninth Circuit, Gerrard’s value is its analysis of what counts as telemarketing, not a defense to an autodialer or prerecorded-voice claim. Two other defenses do most of the work there. Our post on autodialer claims after Duguid covers the other way to defeat that claim.

First, the equipment. An autodialer, as the Supreme Court defined it in Facebook, Inc. v. Duguid, must have “the capacity to use a random or sequential number generator to either store or produce phone numbers to be called.” Many applicant-tracking systems that text numbers people typed into an application may not work that way, and the platform’s technical documentation is worth pulling early. Prerecorded voicemail drops are different: the voice alone triggers the rule, whatever dialing equipment sent it.

Second, consent. Prior express consent is permission given before the message, orally or in writing. Prior express written consent is a signed, written agreement, and the FCC requires it, with narrow exceptions, for autodialed or prerecorded marketing messages to cell phones and prerecorded marketing calls to home lines. The Reardon court held that any plaintiff who “provided her phone number as part of the Uber application process consented to receive” texts about becoming a driver. Ruling on a motion to dismiss, it applied that holding only to the one plaintiff who had finished the application, and let the claims of four people who started an application but didn’t finish it go forward. The consent ruling leaned on a 1992 FCC order the court treated as binding. After the Supreme Court’s June 2025 decision in McLaughlin Chiropractic Associates v. McKesson Corp., a district court “should interpret the TCPA under ordinary principles of statutory interpretation, affording appropriate respect to the agency’s interpretation.” I expect most courts to land in the same place on their own reading. A person who types a cell number into a job application is asking to hear back about the job.

What about former employees and old applicant lists?

Consent has a shelf life in practice, and old consent is the easiest kind to attack.

Consent can be withdrawn. A codified FCC rule in effect since April 11, 2025 lets a person revoke consent “by using any reasonable method to clearly express a desire not to receive further calls or text messages from the caller or sender,” and seven listed replies, including stop and unsubscribe, count automatically, under § 64.1200(a)(10). The rule also says requests “must be honored within a reasonable time not to exceed ten business days from receipt of such request.” The FCC has delayed one piece, the requirement that a revocation in response to one type of message end unrelated robocalls and robotexts too, until April 11, 2026, according to its April 7, 2025 order. The Gerrard plaintiff alleged that she asked twice for the texts to stop and kept getting them. That’s the fact pattern you don’t want in your own logs.

Numbers also change hands. A cell number an applicant gave in 2021 may belong to a stranger now. The Ninth Circuit held in N.L. v. Credit One Bank that the consent of the intended recipient doesn’t protect a caller who reaches someone else, and the jury’s verdict there was “$500 in statutory damages for each of the 189 unwanted calls, for a total of $94,500.” The case was tried under an autodialer definition the Supreme Court later rejected in Duguid, but its consent holding stands. The FCC’s Reassigned Numbers Database offers a safe harbor, which the caller must prove, for a caller who had consent from the earlier subscriber, checked the database, and was wrongly told the number hadn’t been disconnected since that consent, under § 64.1200(m).

Former employees are a judgment call. An employee who gave a cell number for shift scheduling agreed to scheduling texts. Whether that consent stretches to a rehire campaign years later isn’t a question I’d test with an automated blast. My practice advice is simple: refresh consent before you text a list older than your hiring cycle, and run it against the reassigned-numbers database first.

Who is liable when a staffing agency texts for a client?

Potentially both of them.

The Supreme Court’s decision in Campbell-Ewald Co. v. Gomez grew out of Navy recruiting texts. The Court described a record in which the Navy’s marketing contractor hired a subcontractor that sent the texts to people who hadn’t consented. The Court noted the FCC’s ruling that “under federal common-law principles of agency, there is vicarious liability for TCPA violations,” and held that a contractor alleged to have violated both the TCPA and the Navy’s instructions didn’t share the Navy’s immunity from suit.

Read that from both sides of a staffing contract. The agency can answer for the texts it and its vendors send, and under the agency principles the FCC has applied, an employer that controls the agency’s messaging risks being treated as a principal. In Gerrard, the complaint described the defendant as a “staffing and recruiting company that solicits consumers for jobs on behalf [of] clients needing employees,” according to the court’s decision. Expect that kind of allegation in any staffing case, which is why the contract matters. It should say who collects consent, who keeps the records, who honors opt-outs, and whether prerecorded messages are allowed at all. I’d settle those points before the first campaign goes out, not after a demand letter arrives.

Exposure and defenses for recruiting messages

If a recruiting text claim arrives

1. Put a hold on the applicant-tracking and texting platform data for the number: every message, its time stamp, the template, and the consent record behind it.
2. Pull the opt-out history, including any reply the number sent, how the system read it, and when the number was suppressed.
3. Pull any Registry scrub records and reassigned-numbers database queries for the campaign, with their dates.
4. Collect your staffing and vendor contracts, including any agreement for a purchased list, and keep any prerecorded voicemail files.
5. Talk to a lawyer before you answer the demand letter, text the claimant, or offer a payment.

The firm’s California TCPA defense lawyers page explains how it approaches claims involving automated recruiting texts to job applicants.

Questions HR and staffing teams ask about recruiting texts

Is a text about a job interview telemarketing?

Not if that’s all it is. Federal district courts have held that messages about an employment opportunity don’t encourage the recipient to buy property, goods, or services, so they’re neither telemarketing nor advertisements under the FCC’s rules. The analysis changes if the message also promotes a product, a paid course, or anything the candidate has to buy. Consent rules for automated messages still apply either way.

Can we text applicants who gave us their number on an application?

Generally yes, about the job they applied for. A federal court in California held that an applicant who provided a number during the application process consented to texts about that opportunity. The same court refused to dismiss claims by people who started an application and abandoned it, so consent is weaker for them, and for anything unrelated to the job. Keep the application record that shows the number, the date, and any texting disclosure.

Does the Do Not Call Registry apply to recruiting texts?

The Registry rules apply to telephone solicitations, and a plain job offer usually isn’t one. That makes a Registry claim over a pure recruiting text hard to sustain. It doesn’t help with messages that sell training, products, or staffing services to businesses, and it doesn’t touch the separate consent requirement for autodialed or prerecorded messages to cell phones.

Are we responsible for texts our staffing agency sends?

You can be. The FCC has ruled, and the Supreme Court saw no cause to question, that federal agency principles apply to TCPA claims, so an employer that directs or controls an agency’s messaging can face liability for it. Use a written agreement that assigns consent collection, opt-out handling, and record retention, and that bars prerecorded messages and purchased lists unless you’ve approved them.

If your company is the one being sued

If your company has been sued or received a demand letter over recruiting texts, the application records and opt-out logs behind each message will drive the defense. Rosenberger + Kawabata represents businesses defending TCPA lawsuits and class actions through its business litigation practice, including claims involving automated recruiting texts to job applicants. Contact Rosenberger + Kawabata online for a free and confidential consultation, or call (310) 894-6921.

Sources

The statute is the Telephone Consumer Protection Act at 47 U.S.C. § 227. The FCC’s rules are at 47 C.F.R. § 64.1200, as published in the eCFR on August 15, 2025. The FCC’s order delaying part of the revocation rule is DA 25-312 (Apr. 7, 2025).

The court decisions are Facebook, Inc. v. Duguid, 592 U.S. 395 (2021); McLaughlin Chiropractic Associates v. McKesson Corp., No. 23-1226 (U.S. June 20, 2025); Campbell-Ewald Co. v. Gomez, 577 U.S. 153 (2016); Loyhayem v. Fraser Financial and Insurance Services, Inc., 7 F.4th 1232 (9th Cir. 2021); N.L. v. Credit One Bank, N.A., 960 F.3d 1164 (9th Cir. 2020); Chesbro v. Best Buy Stores, L.P., 705 F.3d 913 (9th Cir. 2012); Reardon v. Uber Technologies, Inc., 115 F. Supp. 3d 1090 (N.D. Cal. 2015); and Gerrard v. Acara Solutions Inc., No. 1:18-cv-01041 (W.D.N.Y. June 30, 2020).

This post is general information about the Telephone Consumer Protection Act and related laws as of August 15, 2025. It is not legal advice, and reading it does not create an attorney-client relationship. Courts and the FCC change the rules in this area often, and the outcome of any claim depends on its facts. Past results do not guarantee future outcomes.