What governance does the TCPA provide for open-enrollment outreach?

Welcome to Ask an Adviser, EBN's weekly column in which benefit brokers and advisers answer (anonymous) queries sent in by our readers. Looking for some expert advice? Please submit questions to askanadviser@arizent.com. This week asked Adam Michaels, founder and CEO of Enrollify, to weigh in on the following: What governance does the Telephone Consumer Protection Act (TCPA) provide regarding employee outreach leveraging text, broadcast voice and email during open enrollment?

At its core, the TCPA legislation is designed to govern against cold solicitation and abuse by bad actors who leverage automatic telephone dialing systems or spam consumers with marketing-related messages via email and text. It requires marketing entities to initiate an "opt-in" process and requires a sufficiently easy-to-navigate "opt-out" process for those who no longer want to be contacted. 

And while TCPA contains no explicit exemptions for marketing messages sent to employees, the rules around consent for non-marketing calls for reasons associated with employment such as emergency notification, business closures and other business-related activities are sufficiently loose. As such, an employer probably does not need the employee's consent to use his or her number in any particular way. 

Read more: Post-pandemic, business and benefits are all about hyper-personalization

While written consent may be more legally sound, there is an implied consent when an employee provides his or her phone number to an employer at onboarding. The purpose of being contacted may include reasons associated with employment like open-enrollment notifications and other benefits-related items. 

When it comes to execution of an effective communication and engagement strategy, it is important that employers choose a provider or solution that has taken the added steps of going through A2P verification and leverages verified toll-free numbers that align with their use case. This will ensure that they comply with the new rules governing 10DLC and optimize throughout while minimizing abandonment. This effort will involve including recipient opt outs at every step of the process and a messaging narrative that is aligns with corporate objectives rather than spamming employees to "buy stuff." 

Though it's likely not necessary, employers that want to go the extra mile on checking boxes can send a letter in advance of the start of the campaign alerting employees of their intentions and their ability to opt out by texting STOP.