The Impact of Communications Legislation
on the Physician Recruitment Industry
May - June 2004
It is no secret that legislation passed over the last year has brought significant changes to communication patterns within the recruitment industry. Both federal and state laws impact how we share information with our physician candidates and our clients. Our strategies for sourcing candidates, communicating with candidates and clients, and developing new business have necessarily taken on a new importance. The method of our communication now takes on as much significance as the information we are exchanging. We can assume candidates who have entered their contact information voluntarily on proprietary job-board databases, association databases, or in other ways have volunteered this information for the purpose of securing employment and have given their express permission to be contacted by recruiters.
Be aware, however, that there have been an increased number of legal actions brought against recruitment firms for improper business communications over the past two years. Don’t let your firm or recruiting department become one of them. If your company or department has not reviewed the policies and procedures governing your communication, now is the time to do so. What follows is a brief description of some of the current legislation governing commercial communication. I would encourage you to check with legal counsel for advice that is specific to your state and your business.
Telephone Consumer Protection Act (TCPA)
The Telephone Consumer Protection Act (TCPA) is a federal law, first passed in 1991. This law prohibits the sending of “unsolicited advertisement to a telephone facsimile machine” at either businesses or residences. Each facsimile that a recruiter sends in violation (without permission) is considered a separate violation and can be punished by a civil penalty of $500 to $1500 per violation. In January 2005, even more restrictive legislation is likely to take effect. The only exemptions to the TCPA are those faxes sent to a recipient with whom a prior business relationship exists, or from whom you have received permission, oral or written, or an invitation to send facsimile communications. It is in the recruiters’ best interest to document when permission is granted and by whom.
Most states have their own unsolicited facsimile legislation, so it is advisable to check with the states where you conduct business. In all states, the minimum restrictions will be the TCPA legislation. If you are sending facsimiles as a marketing strategy, it would be advisable to include a footer offering an “opt out” option. Language should clearly state that you are offering the option of removal from the fax list, and it should include your name, address, and a toll-free number for this purpose. Maintaining a “Do Not Fax” list is recommended.
CAN-SPAM legislation
The CAN-SPAM legislation, effective as of January 1, 2004, governs all solicited and unsolicited commercial e-mail communication. The legislation defines commercial electronic mail as “any electronic mail message the primary purpose of which is the advertisement or promotion of a commercial product or service.” This legislation does not cover transactional or relationship messages (those messages that complete or confirm a commercial transaction, provide warranty or product information, or provide account information). By most interpretations, e-mails to advertise or describe opportunities for physicians or that describe candidates to clients will fall under this law.
Your electronic message must include a subject line that clearly states the purpose of the communication as a solicitation or advertisement. Standards have not yet been set to govern identification or labeling of these messages; the law only states that you need a “label” to identify your communication as a solicitation. The sender must also have a clear and conspicuous notice regarding the opportunity to “opt out” of being solicited. Senders must also include their full identity, including a valid postal address. This federal law supersedes all pre-existing, more restrictive state laws. Private citizens cannot bring actions against violators of this law; only the Federal Trade Commission and state attorneys general can enforce this law. If civil actions are brought forth, financial penalties can be sought by any state’s attorney general.
“Do Not Call” Legislation
“Do Not Call” legislation does not apply to telephone calls made to physician offices, clinics, or hospitals. When calls are made to a physician’s residence, they may fall under the state “no call” regulations. These regulations vary from state to state, so it is in the recruiters’ best interest to carefully check the regulations in effect in the states where you conduct business, and to educate all your recruiters and marketers about these regulations.
It is worth noting that the general attitudes in society today are often adversarial toward commercial solicitation of any kind. As the competition for clients and candidates heats up, the volume of telephone calls, facsimiles, and e-mails dramatically increases. A well-crafted message, giving the recipient the information they need in a compelling manner, can be a powerful recruitment tool. It is in the best interest of all recruiters, both in-house and from outside firms, to spend some time brushing up on those very important writing skills. Honest, direct, forthright communications delivered with common sense and courtesy will benefit not only your daily communications but your bottom line as well.
Source: Karen Zeller, president of Rocky Mountain Medical Search and past president of the National Association of Physician Recruiters. Ms. Zeller may be reached at kzeller@rockymtnmed.com or 1-800-735-6721.
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