If your team relies on texting and SMS messaging to reach applicants, interview no-shows, or passive candidates, you’re not alone… but you’re also squarely in the sights of regulators and class-action plaintiffs.
Lawsuits targeting unwanted texts are on the rise. Statutory damages can stack up quickly in class actions. To complicate things, state-by-state rules continue to evolve.
For HR, recruiting, and operations teams running national hiring campaigns, this creates a complex, high-stakes compliance environment.
Below is a practical, Applicant Tracking System (ATS)-focused guide to the key risks and action steps to help Paypro readers understand where texting can go wrong and how to reduce exposure.
How does Applicant Texting Draw SMS Compliance Lawsuits?
Lack of valid consent
Simply collecting a mobile number on an application is not enough for marketing or outreach texts. You must be able to prove the person clearly agreed to receive the specific types of texts you’re sending.
Opt-ins with the wrong scope
Candidates may agree to receive transactional updates (for example, “your interview is scheduled”) but not recruiting promotions or job alerts. Ambiguous or bundled consent creates disputes. Mistyped numbers can also lead to complaints from unintended recipients.
Autodialer uncertainty
Restrictions on texts sent with an automatic telephone dialing system (ATDS) continue to be litigated. Because guidance is unsettled, automation and bulk messaging tools can increase risk if you don’t have the right level of consent.
Wrong or reassigned numbers: Liability often turns on the person who actually received the text, not who you intended to reach. If a number was reassigned, you may still be on the hook.
Top 10 steps to reduce risk in your recruiting texts
1. Get clear, conspicuous, specific consent
Use standalone language that a reasonable person can understand (don’t bury consent in terms or bundle it with other permissions).
Spell out who is texting (the specific employer) and what categories (application updates, interview reminders, job alerts, etc.).
Make sure consent for marketing or promotional recruiting messages is separate from consent for transactional updates.
2. Capture electronic consent in an E-SIGN–compliant way
Use affirmative actions (for example, a checkbox the applicant must actively click).
Store time/date, IP, page or screen where consent was captured, and the exact language shown.
3. Never use pre-checked boxes or opt-out-by-default
Pre-checked boxes and “silence equals consent” approaches are high-risk. The candidate must take a clear, affirmative step to agree.
4. Keep consent “sender-specific”
Consent generally does not transfer between entities. Name the exact employer (and each brand/division if applicable). Avoid vague references to “partners” or “affiliates.”
5. Be ready to prove consent
The burden is on you to show valid consent. Keep auditable records of opt-ins, message categories, and any changes to consent over time.
6. Formalize your TCPA/SMS compliance program
Review current federal and state rules and update policies accordingly.
Involve counsel familiar with TCPA and state “mini-TCPA” laws to assess your use cases (marketing vs. transactional, automation, quiet hours, etc.).
7. Use a consent and preference management system
Centralize consent flags, link them to each phone number, and sync across your ATS, CRM, and texting tools.
Log revocations and scope changes in real time and block messages systemwide when consent is withdrawn.
8. Scrub against Do-Not-Call (DNC) lists where applicable
Automate DNC scrubs for telemarketing/promotional outreach to reduce accidental violations.
Maintain an internal DNC/Do-Not-Text list and honor it across all systems.
9. Make opting out effortless and immediate
Include a simple opt-out (for example, “Reply STOP to opt out”) in your message flows.
Process opt-outs instantly and propagate them to all connected systems to prevent further sends.
10. Train your teams
Educate recruiters, HR, and marketing on consent standards, DNC rules, message categories, and how to process opt-outs.
Refresh training as laws and your workflows change.
Practical tips for ATS-driven recruiting programs
Separate message categories: Distinguish transactional (application status, interview logistics) from promotional (job alerts, talent community outreach) in your consent language and system flags.
Verify numbers and reduce wrong-party texts: Consider number verification at capture and confirmation texts that require an affirmative response before starting a message cadence.
Limit automation risk: Map which campaigns use automated or bulk sends and ensure the consent level matches the tool and purpose.
Track reassigned numbers: Establish processes to detect and suppress texts to numbers that bounce, never engage, or trigger “wrong number” responses.
Standardize content: Avoid ambiguous language; include your brand name, purpose, and opt-out instructions. Keep a library of approved templates.
Questions to Ask Any Applicant Tracking System or Texting Vendor
- How do you capture and store E-SIGN–compliant consent and the exact disclosure presented?
- Can you separate and enforce consent by message category (transactional vs. promotional)?
- How are STOP/UNSUBSCRIBE requests handled and synchronized across all campaigns and integrations?
- Do you provide DNC scrubbing options and internal DNC/Do-Not-Text list management?
- What safeguards exist to prevent messages to reassigned or invalid numbers?
- Can you easily export consent and messaging logs for audits or litigation?
Bottom line
Texting can speed hiring and improve candidate experience, but it brings real legal exposure if not managed carefully. Build explicit, auditable consent into every step of your recruiting workflow, keep your policies current with evolving federal and state rules, and ensure your ATS and messaging tools operationalize opt-ins, opt-outs, and recordkeeping.
This information is for general awareness and is not legal advice. Consult your legal counsel to tailor a compliance program to your organization and jurisdictions.