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Can You Text Your Employees? A Quick 101 on SMS Rules

Ross Simons

Ross Simons

Director of Inbound Marketing
can you text your employees texting regulations

If you’ve been receiving text messages from a business or fundraising group, you’ve probably become accustomed to the phrase “reply STOP to opt out” (or something like it).

You’ve probably also assumed that the sender didn’t include the opt-out message simply to make your life easier. You assumed correctly; anyone wishing to send an automated text message must follow strict regulations designed to protect consumers from unwanted interruptions and scams.

Crucially, federal texting regulations apply to nearly any use of automated texting systems, regardless of the intended recipients. As an employer, if you text or plan to mass text your employees, you must understand and follow these regulations.

What Are the Benefits of Mass Texting Employees?

Texting is an excellent way to reach employees with urgent messages. As we wrote recently, the average text message sees an open rate of 98% (compared to 20% for email), and over 90% of people read their text messages within three minutes of receiving them (vs. 90 minutes for email).

Texting ensures engagement partly because people love their phones, keep them within arm’s reach, and even enjoy receiving messages. Since they’re usually short and actionable, automated and mass text messages are not widely viewed as annoying and disruptive the way emails and phone calls often are. But that perception could change if you overuse text messaging. 

So, while following federal texting regulations will keep you on the right side of the law, the rules also provide a roadmap for good texting etiquette, which will keep you on the right side of your employees.

Which Regulations Must You Follow When Texting Your Employees?

The most relevant federal regulations pertaining to mass text messaging (or SMS) are contained in the Telephone Consumer Protection Act (TCPA), passed in 1991. Broadly speaking, the TCPA prohibits using an automated system to contact any cellular user without the user’s permission. Permission can come in the form of implied consent, express content, and express written consent.

The TCPA is generally understood to apply to text messages, as well as voice calls.

What Is the Most Important Aspect of the Federal Texting Regulations?

It’s simple: consent. And it comes in three forms:

  • Implied Consent. Where the context of a relationship or the type of messaging implies consent to receive the message. (Most employer texting falls under implied consent.)
  • Prior Express Content. Where someone you are texting has explicitly agreed to receive your text messages. 
  • Emergency Purposes. Where the emergency nature of a message supercedes the need for prior written consent. Also a form of implied consent. 

What Exactly Is Prior Express Consent?

The concept of “prior express consent” is central to the TCPA. 

While most of the messages employers will send fall under the implied consent rule, it’s still a good idea to secure their permission to text them. Forms of prior express consent may include:

  • An opt-in web form
  • Handwritten permission
  • Recorded verbal consent
  • Opt in by text using a personal code

When asking for your employees’ consent to send text messages, you should inform them (among other things) how frequently you plan to text, what you’ll be texting about, and how they can opt out of texting if they change their mind later.

You might consider requesting your employees’ consent to be texted during the onboarding process for new hires, or including it in your employee workbook that new hires receive. 

Does Most Mass Employee Texting Fall Under Implied Consent or Emergency Purposes?

The short answer: Yes. The long answer:

Implied Consent

The TCPA is most concerned with marketing/promotional messaging, and the rules are generally more relaxed when messaging is informational in nature. 

The TCPA also allows you to message contacts when you have “implied consent.” An easy way to think about implied consent is that it’s more casual or inferred in nature, whereas prior express consent is more like getting formal permission. 

As long as your texting campaigns are informational in nature, they should fall under the “implied consent” framework. The mere fact that the employee supplied the number directly to the employer is enough consent for most non-marketing purposes. The same concept applies as someone handing you their business card at a conference. When someone shares contact information with you, it generally qualifies as implied consent. However, you should always consult with legal counsel should you have concerns. 

Emergency Purposes

According to the TCPA, messages sent for “emergency purposes” may be exempt from the prior-consent rule. As for what constitutes an emergency, anything impacting employees’ health and safety may apply (for example, if you’re closing down a location to repair a toxic leak and want to make sure your employees stay home).

What About Employees Who Change Their Minds?

This is where those “STOP to opt out” messages come into play. You must provide your employees with a clear and straightforward method for indicating they no longer wish to receive text messages.

When your employees choose to opt out, remove their numbers from your texting database as quickly as possible.

Also, be sure to regularly purge your list of employees who no longer work for your company. And ask your employees to confirm or update their contact information regularly. A few years ago, a Mexican restaurant chain was sued and paid a significant settlement for texting a number that no longer belonged to an employee.

Get Started Texting Your Employees

The information in this article is meant as a starting point for understanding the regulations around texting your employees. As with all legal matters, we recommend consulting with experts before launching an employee texting strategy — especially if you are unsure about anything.

Not all forms of employee texting necessarily fall under TCPA regulations, but it may be best to err on the side of caution by securing your employees’ consent rather than risk fines and lawsuits.

Once you feel you are on solid regulatory footing, texting large groups of employees is easy with Flimp’s WorkforceTXT platform. You simply upload an employee CSV file, write your message, and hit send. Click here for a free demonstration.

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