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Can You Email Candidates Or Do You Risk A $10 Million Fine?

Photo of hands typing on a keyboardThanks to the new Canadian Anti-Spam Legislation (abbreviated as CASL), it’s gotten a whole lot harder for businesses to email people.

Employment agencies, recruiters or headhunters, by definition, have to attract candidates. To do this, we have to actively communicate with candidates and prospective candidates through email, text messaging, phone calls or face-to-face meetings. Once we find suitable candidates, it makes sense to have an affordable way continue to communicate with them until they are hired, as opposed to always trying to re-attract them through new marketing efforts. The best and most affordable way to stay in touch with candidates is, you guessed it, through email.

Email rules and best practices

When CASL came into effect earlier this year, companies across Canada, including headhunters and recruiters, scrambled to get people’s permission to send them email newsletters. Fear of $10 million dollar fines had companies virtually spamming former clients, asking them to sign up for lists, before the legislation came into force. (But there’s no need to panic if you haven’t done it yet. Companies have until June 2017 to receive consent for email marketing.)

Email marketing best practices change over time. One reason is because of changing legislation. The CAN-SPAM act in the US, and now CASL in Canada, provide a legal framework to use email as a marketing tool. The second reason is to keep clients and contacts happy. As consumer behaviour changes online, businesses have to follow suit. Unwanted marketing email is a surefire way to anger clients and contacts.

A third and very valid reason to ensure best practices when emailing thousands of candidates is to keep your company’s domain from being caught up in spam filters or blacklisted. Email marketing companies like MailChimp, Constant Contact, AWeber and Emma have developed safeguards to ensure maximum deliverability–including quickly blocking spammers. But even if you don’t use any of these services, your hosting provider is also keeping an eye on spam reports and could block your email (and website) too.

Is emailing candidates and clients still allowed?

Now, your pressing question probably is, “can I still email candidates and contacts?”

Yes, you can.

You don’t have to give up you current client or candidate lists. Chances are that you can still use them and comply with the law. Specifically, two parts of the legislation allow you to continue to use email for marketing and recruitment purposes:

  1. Candidate recruitment emails may be exempt from the legislation.
  2. Implied consent has been likely been given to you.

Why could headhunter emails be exempt? In the case of candidate emails, the government itself states: “Most employment recruitment messaging would not fall into the definition of CEM in CASL as these would not normally offer, advertise, market or promote a product or service.” When you dig deeper in the legislation (specifically 1.(2)(a)), you could argue that a recruitment email offering a job free of charge to candidates is not an “Offer to purchase, sell, barter or lease”.

Conversely, a broader interpretation of the legislation could say that recruiters are offering a service and charging fees to clients. However, in the case of contingency and retainer search, where candidates are placed with suitable employers at no fee to them (as is the law in almost every jurisdiction in Canada) it would appear that the government’s interpretation of its own legislation is correct and that recruitment emails are exempt from CASL.

However, keep in mind that this only applies to emails to candidates; your emails to clients, to whom you actually sell your services, may actually fall under the law.

Additionally, CASL allows companies to continue to send email to people who have provided implied consent to receive messages. During the 36-month transition period (until June 2017), the government explicitly says that you can continue to use your current email list if you have previously provided your products or services to them and they haven’t told you to stop. In reading the text of the legislation on implied consent, you could interpret this to mean candidates who send their resumes with an email address. 

Go ahead and recruit!

In summary, yes, recruiters need to ensure that they use best practices when sending emails to candidates and clients. You can do this by asking for consent, providing clear identification information and giving an unsubscribe mechanism.

Do you, as a recruiter, need to stop emailing candidates to comply with CASL? To satisfy the legal risk this question poses, I will say you should check with the government or a lawyer that specializes in Canadian communication law. However, in my humble and non-legal opinion, we can email candidates with job openings that fit their needs with little to no risk.

Photo: Hubspot