Are You Allowed to Record An Interview?: The Legality of Video Interviewing

As the pioneer of video interviewing technology, interviewstream decided to seek perspectives from a few employment law experts on a few of the legal questions that we’ve gotten over the years. We hosted a webinar where we sat down with three legal and recruiting experts to discuss the questions: are you allowed to record an interview? And are video interviews legal?

Legal Perspectives on Video Interviewing Webinar

Are You Allowed to Record An Interview?

As we try to answer whether recruiters are allowed to record an interview, we also reached out to several employment attorneys to ask for their unbiased thoughts on the tech as a whole. Below is a round-up of what they had to say.

John Myers, Member, Board of Directors, Chair of the Labor & Employment Group
Eckert Seamans Cherin & Mellott, LLC

“I see only three areas for comment from a legal perspective. First, and most importantly, video screening must be accessible to disabled applicants, such as the hearing or visually impaired.

If it is not, then the employer needs to communicate to applicants that an alternative screening method is available, so that the procedure is not having the unintended effect of eliminating some disabled applicants from further consideration. While this would require a disabled applicant to voluntarily self-disclose before an offer is made, that does not make the process unlawful.

Second, to the extent that resume screening is being displaced by video screening – i.e., the employer is getting a “look” at more candidates than before – the employer will know race, age, disability of the candidates before making the screening decisions. The employer will, therefore, no longer be able to defend a discrimination claim by asserting that it was not aware of the applicant’s protected status when it decided not to hire the plaintiff.

Although this has always been true of those candidates who are interviewed in person, with video interviewing the pool of candidates who are seen is significantly larger, so that the pool of potential plaintiffs is also larger. If a recording is made, it should be noted, government contractors and subcontractors will be required to keep the recordings just like other records of the hiring process, and also to conduct adverse impact analyses to assure that the new procedure is not having a negative effect on any protected classes of candidates. Other employers would be advised to do the same.

Third, on a positive note, video interviewing assures (assuming a recording is made) that there will be a record of what was said during the interview process. Many lawsuits have been based on claims about what was said during an interview. For example, contract and fraud claims may assert that assurances were made in the interview process that the interviewer disputes, or that remarks indicating a bias were made by the interviewer.

Having a record of an interview will assure that there will be no disputes about what was said by whom. Of course, interviewers will tend to be more judicious in their remarks and questions, one would hope, knowing that the process is being recorded.”

Jared Jacobson,
Jared Jacobson Law, LLC

“One concern critics have is that there may be more opportunities to bring discrimination claims if the video interviews are not used responsibly. It gives the company an opportunity to see some protected traits of a person being interviewed, prior to bringing them in. These protected traits, such as race, age or national origin, may not be apparent from an application, however, something like gender would likely be. Once we get past the application phase, an “interview” is the next step whether it is on-line or in-person. In my opinion, there are the same risks for discrimination in hiring whether it is in-person or online.”

Teresa Tracy, Principal Chair, Labor & Employment Practice Group,
Gladstone Michel Weisberg Willner & Sloane, ALC

“The EEOC, the federal agency that enforces Title VII and the other federal non-discrimination laws, has maintained a neutral stance on the use of video interviews, neither endorsing it nor indicating that it would violate the law. Instead, the EEOC has directed employers to its guidance and technical assistance regarding employee selection procedures and related guidance that it has issued of a general nature.

In addition, the EEOC has itself indicated that it would video interviews where needed in connection with its EEOC Attorney Honor Program. This leads me to conclude that there is nothing inherently unlawful about the use of this tool in conducting interviews.

As with any other selection methodology, employers need to be aware of and avoid potential problems when using this interview tool. Several issues that come to mind include whether there would be an adverse impact or direct discrimination due to certain segments of the population or a particular applicant having less access to or other barriers to effectively using video conferencing capability, and the ever-present concern that information would be obtained through the use of video that might otherwise not be gathered from a paper screening or telephone interview, e.g., age, disability, nationality. Thus, an employer should be prepared to have alternatives that can be offered to eliminate the potential problems, including alternatives that can be offered as an accommodation to applicants who have a disability.

Anyone who has reviewed resumes or conducted telephone interviews knows that applicants often volunteer information or the interviewer otherwise becomes aware of information that could later be alleged to have led to discrimination. Thus, becoming aware of such information through a video conference, even without the applicant affirmatively volunteering it, should pose no bigger problem for an employer than information that is volunteered or otherwise learned during an interview, if the proper training regarding employee selection has been conducted and the appropriate non-discriminatory reasons for selection have been applied and documented.”

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