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Ninth Circuit Decision Is Warning to Employers About Robo Recruitment

The federal Telephone Consumer Protection Act (TCPA) makes it “illegal to place what are colloquially known as ‘robocalls’ to someone’s home phone or cell phone.” It prohibits calls using an automatic telephone dialing system or prerecorded voice unless for emergency purposes or with the prior express consent of the called party.

Johnathan Loyhayem received a pre-recorded voicemail message from Fraser Financial. The message said the company was looking to hire advisors in his area. Loyhayem alleged Fraser Financial used an automated dialing system and prerecorded voice to make this “job recruitment call;” he claimed he had not given his express consent to allow these calls. He filed a lawsuit against Fraser Financial alleging violation of the TCPA. In interpreting the TCPA, a federal district court concluded the statute allowed robocalls to cell phones unless the calls involved advertising or telemarketing. After the court dismissed his claims, Loyhayem appealed the case to the Ninth Circuit Court of Appeals.

The appellate court reversed the dismissal of Loyhayem’s claims because it disagreed with the lower court’s interpretation of the TCPA. The appellate court held the statute applied to all robocalls; anyone utilizing robocalls had to first obtain express consent. If the robocall had included advertising or telemarketing, prior written consent would be required, according to the circuit court. For the information type of call received by Loyhayem, the company needed to have either oral or written consent first. Violation of the TCPA could give rise to damages of $500 per negligent violation and $1,500 per willful or knowing violation.