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E-mail Recruiting:

Spam under CAN-SPAM

and Illinois Law?

         An article by Theodore Olsen in The Labor Lawyer (Vol. 23, No.2, fall 2007) warns employers that active recruiting of a competitor’s employees through e-mails that pass through the competitor’s e-mail system may break the law.

             The laws are twofold: The federal (and long-winded) Controlling the Assault of Non-Solicited Pornography & Marketing Act of 2003 (CAN-SPAM), 15 U.S.C. §770-13 (2004) and the state Electronic Mail Act (the “Illinois Act”) 815 ILCS 511/5. Each focuses on what the latter refers to as “unsolicited electronic mail advertisements.”

             Under the Illinois Act, to which CAN-SPAM defers for much of the enforcement at the state level, you as a recruiting employer are required to: 

·        Tag all e-mails to another company’s employee with “ADV” in the beginning of the subject line

·        Provide in the e-mail an “UNSUBSCRIBE” return e-mail option, or a toll-free number to accomplish the same.

             A competitor of yours who doesn’t appreciate losing talent because of your recruiting, which includes e-mails that go through the competitor’s network, has the Illinois Act and CAN-SPAM to use. Under the former, penalties of up to $25,000 per day are permitted plus attorney’s fees.

 If you yourself are concerned that e-mails to your employees function as recruiting tools by a competitor, these laws provide tools for putting this competitor on notice – and bringing suit thereafter if necessary.

 Please contact Burr E. Anderson at (312) 957-1100 if you would like to discuss this client alert.