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October 06, 2013 Articles

Watch This? Video Interviewing and the Employment Lawyer

Video screening may save you from having to defend an EEO claim.

By James O'Reilly – October 16, 2013

The technology revolution that brought us YouTube and a host of other visual delights (or not) has brought to our clients the latest human-resources (HR) buzz, the video-screening pre-interview. Fans of the video-screening device have projected that it may capture 80 percent of the larger employer market by 2020. This commentary offers one perspective on this remarkable phenomenon and its potential in employment law contexts.

Early adopters of the video-screening software present some remarkable numbers: The global industry for “recruitment software” is growing at 9 percent per year, now over $1 billion. This and other business-process-outsourcing options are increasingly attractive to middle managers in HR departments whose overhead has been reduced and whose number, experience, and depth of staff for initial interviews have been cut with corporate downsizing. Companies such as HireVue, MontageTalent, and InterviewStream are marketing aggressively with annual licensing of their services and “cloud”-based software as a service model.

What Is Video Screening?
The dry mouth and sweaty palms you experienced when lining up for that first-level interview are gone. The camera inside or on top of your own computer terminal is lined up, and you are in your favorite chair at home, college, or some neutral quiet site. A company HR representative is not across from you wishing he or she were elsewhere; no bored expression on the screening interviewer’s face gives away his or her desire to go to lunch in only 26 more minutes. The moment of truth, as it were, is online only 20 seconds from now.

The focus is literally on you as you record your answers to a series of very specific questions. Here’s where the employment lawyer starts to smile. There is a great opportunity for the legal department to sign off on approval of the content of the company’s six or eight questions. The HR person will help draft them, with aid from the actual hiring department that seeks new strengths. After the questions are deemed “job related,” “task-readiness specific,” and nondiscriminatory, the questions are placed on the coded website. Invitations are sent online to those who have applied for the position. They click in, read the question, click the camera on, and tell their story in the time permitted, and then click to save it.

The typical experience of employment lawyers is to cringe at some of the equal-employment-opportunity (EEO) charges asserting that particularly dumb comments were made at the interview by that bored HR representative. How many of her kids are in day care, what does he think about today’s headlines on gay marriage, or isn’t it a shame that . . . (fill in the gaffe). The interview process that screens the candidates is worthwhile most of the time, but fallible humans will sometimes operate the process in an unexpected and undesired way. “Do-overs” don’t exist when the discrimination agency gets the charge a week or a month later. He-said/she-said disputes about the content of the in-person interview are predictable.

Look at this new video tool from the HR client’s viewpoint. Often the experienced interviewer will know in the first three minutes of interaction that the company would never put a given interviewee in the front row of a sales meeting with a key customer. That leaves 27 minutes of scheduled time to await the next interviewee. When factors of EEO disparate impact are included, the search for the candidates who meet the best profile of ideal employee for the job will become more legally sensitive and you will be in greater control “up front.”

Look at it from the millennial applicant’s view. Very familiar with technology such as Skype and YouTube, the newer talent pool is unafraid of being recorded and may have more success in projecting into the camera than they might in the intimidating atmosphere of a small conference room with one or two interviewers. They do communicate with peers all the time by similar video interactions. That old folks may find this to be unusual reflects more on the older types. (Your author had surprise open heart surgery in 2012 but finished the semester on Skype, so it can be done even with bored employment-law students.)

What Should You Be Doing?
First, examine the security of the vendor, because access to these questions in the cloud should be limited to those who are actively being considered. There may be great intelligence value for a competing firm to know how you view the weak points of your company that this person is hired to address. Next, address the team that will make up the questions. The video interview is as good as the questions you ask. Are they EEO-defensible and job-related inquiries in the event that you are challenged? You will know exactly what words had appeared on the non-hired applicant’s screen. Next, watch some of the early sets of responses that HR collected and archived, so you know what the candidate said and how he or she responded to the questions. The visuals are not your company’s fault if they are bad, because the candidate or a third party such as a school placement office supplied the camera. The “tale of the tape” is that this candidate was unacceptable after 07:42 of the video, and the HR person went on to another candidate. It is not illegal and does not personally offend the candidate.

Where Will There Be Vulnerability?
There is significantly less vulnerability than with interviews done in person. The video shows exactly the person whom your HR staff would have met in person, so the claim that disability or visible ethnicity was a factor in rejection makes no difference from the in-person to the in-video screening interviews.

How Should You Respond?
As a law professor, I beg you, please, hire more law graduates. Consider the video method of screening 2Ls instead of financing your partner’s expensive next trip to New Haven, Cambridge, Palo Alto, or Cincinnati. But as to your own clients, give the digital-video-interview platform the opportunity to screen those who are likely to meet your EEO-defensible parameters in 20 minutes, securely archive it in the cloud, and encourage a cost saving in the HR group. They will welcome the encouragement. And for movie buffs among us, name the actress who famously said the line: “I’m ready for my close-up, Mr. DeMille. . . .” (Hint: Norma Desmond didn’t get the job).

Keywords: litigation, employment law, labor relations, video screening, equal employment opportunity, EEO

James O'Reilly is a professor of law at University of Cincinnati College of Law.

Copyright © 2013, American Bar Association. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or downloaded or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. The views expressed in this article are those of the author(s) and do not necessarily reflect the positions or policies of the American Bar Association, the Section of Litigation, this committee, or the employer(s) of the author(s).