Could employers be the next target for Telephone Consumer Protection Act class actions?
Hopefully not, after an Illinois federal court judge dismissed a complaint brought by an applicant against a company to which she had applied for employment.
In March 2007, Herminia Dolemba submitted an application to Kelly Services, Inc., a temporary staffing company. She indicated an interest in positions using office skills such as accounts payable and accounts receivable. She also provided her cellphone number on the application form. Signing the application, Dolemba “authorize[d] Kelly to collect, use, store, transfer, and purge the personal information that [she] provided for employment-related purposes.”
Dolemba did not hear back from Kelly until February 2016, when her cellphone allegedly received a call made using an automatic telephone dialing system (ATDS), soliciting individuals for employment as machine operators in certain locations. She responded with a putative TCPA class action, arguing that the call exceeded the scope of her consent and that her consent expired long before she received the call in 2016.
Kelly told the court that Dolemba’s signature on the employment application indicated her consent to receive calls regarding employment opportunities, which encompassed the call at issue. U.S. District Court Judge Sara L. Ellis agreed, and she granted Kelly’s motion to dismiss the suit with prejudice.
A called party may revoke consent at any time and through any reasonable means, the court acknowledged, but “[i]f an individual does not revoke his or her consent, however, it does not expire at some point in time on its own.” Simply because Dolemba did not have further communications with Kelly after she submitted her application was insufficient to revoke her consent, “for silence or inaction cannot be effective,” the court said.
Dolemba also tried to narrow the scope of her consent, arguing that she only indicated interest in employment positions using office skills such as accounts payable and accounts receivable—not as a machine operator.
“But Dolemba’s attempt to recast her consent, which states that she allowed Kelly to use her personal information for ‘employment-related purposes,’ does not defeat Kelly’s motion to dismiss,” the court wrote. “The call Dolemba received clearly related to an employment opportunity. Although not specifically tailored to the exact job interests Dolemba indicated in her application, it still fell within the broad consent she gave to Kelly to use her cellular phone number to contact her generally for employment-related purposes regardless of whether that job matched her job interests.”
Because Dolemba provided her consent to be contacted about employment opportunities by Kelly, Judge Ellis dismissed her complaint.
To read the opinion and order in Dolemba v. Kelly Services, Inc., click here.
Why it matters: The decision is a victory not just for employers concerned about using modern technology to reach out to job applicants, but to TCPA defendants more generally. Judge Ellis confirmed that a consumer’s “silence or inaction” cannot revoke consent and that the plaintiff’s broad consent to be contacted for “employment-related purposes” even encompassed a job opportunity in which she may not have been interested.