A U.S. District Court judge has dismissed a robocalling lawsuit against an employment services company, which had been accused of violating federal law by using an automated dialer to call the mobile phones of people who had applied for jobs.

In a federal court decision that could have widespread implications, U.S. District Judge Sara L. Ellis, in Chicago, dismissed the case with prejudice.

The case stems from a class-action suit filed by plaintiff Herminia Dolemba against Kelly Services, who she alleged violated the federal Telephone Consumer Protection Act and the Illinois Consumer Fraud Act. More specifically, attorneys for Dolemba charged that Kelly, a temporary employment services agency, broke TCPA laws by phoning her cell phone using an automatic telephone dialing system (ATDS) without first securing her express consent.

“This case is a first of its kind because typically these kinds of cases involve robocalls about advertisements,” Gerald L. Maatman Jr., a partner with Chicago-based law firm Seyfarth Shaw, told the Cook County Record. “TCPAs are being filed all over the place, and at issue most of the time is consent to receive. This case centered around consent coming in the form of a job application, and the court had to decide if that’s what Congress had in mind when it passed legislation.”

According to Dolemba, in February 2016 she received an ATDS call to her cell phone from Kelly that came roughly a decade after she first registered with the company.

In a voice mail, a Kelly representative solicited her for leads about individuals who might be seeking employment as machine operators. At the time she applied with the company, Dolemba expressed an interest in positions where she would be able to make use of her office skills.

But in signing the application, Dolemba "authorize[d] Kelly to collect, use, store, transfer, and purge the personal information that [she] provided for employment-related purposes," which included her cell phone number.

“Going forward, I would expect potential plaintiffs to argue that they didn’t realize they were given consent,” said Maatman. “I expect that they will argue that no one properly explained things to them and they didn’t realize what they were signing. The argument will center on the quality of the notice.”

Maatman added that he would advise companies to take a thorough look at their hiring procedures and application process, making sure that they have obtained full expressed consent from all applicants before making use of any of their information.

“Many large employers, especially those that do seasonal or temporary hiring, need to be more careful,” he said. "This is not new, but in this digital workplace era, it kind of stands as a test case.”

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U.S. District Court for the Northern District of Illinois
219 S Dearborn St
Chicago, IL 60604

Seyfarth Shaw LLP
131 S Dearborn St
Chicago, IL 60603

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