During the pandemic, employers who needed to hire new workers were forced to conduct job interviews virtually on platforms like Zoom.
This obviously made the interviewing process safer at the time, and many employers liked the efficiency of virtual interviewing so much that they’ve decided to make it a permanent fixture of the hiring process.
However, like many things that seem to make life better for employers, virtual interviewing has its legal risks, and it’s important to consult with an employment attorney to ensure you’re not walking into a lawsuit.
The biggest risk is discrimination suits.
For one thing, a company that requires job candidates to interview virtually is assuming that the candidate has access to the necessary technology, like high-speed internet service at home and a computer with a camera. But studies from the Pew Research Center show that older job candidates are less likely to have such technology.
Another Pew study shows that Black and Latino job candidates are far less likely to own home computers than white candidates.
Meanwhile, federal discrimination law and most state discrimination laws prohibit both age and race discrimination.
“Disparate impact” claims (where someone asserts that a policy that appears neutral on its face disproportionately harms job candidates and workers from a particular group) are covered by many of these laws.
To address the risk of disparate impact, employers adopting virtual interviewing need to be flexible and provide other options for candidates who don’t have the necessary technological capacity at home.
For example, they might consider allowing camera phones or conducting the interview as a phone conference call instead.
Similarly, some candidates may have disabilities that make it hard to do a virtual interview.
In such cases, the federal Americans with Disabilities Act may require employers to provide reasonable accommodations that allow the candidate to participate, or they may need to consider evaluating the candidate in some other way.
It’s also probably a good idea to make it a practice to have job candidates blur their backgrounds or use a fake background when conducting a virtual interview.
If the candidate then doesn’t get the job, he or she might claim they were rejected for discriminatory reasons, such as racial bias or concerns about caregiver responsibilities.
The fact that some state anti-discrimination laws are even stronger than federal law presents another trap for employers. If you’re interviewing a candidate located in one of those states, that state’s employment laws may apply.
An attorney can help you navigate this situation so you don’t inadvertently conduct an interview in a way that’s acceptable where you live but violates state laws where the candidate lives.
A further area of risk is recording video interviews. It’s understandable to want to record an interview for later review and to get additional people involved in the decision-making.
But it’s critical to review different states’ privacy and wiretapping laws before doing so, because they differ.
Some states only require that only one party to the conversation approve of a recording while other states require approval from all parties.
The best approach is to obtain consent from all participants, including the job candidate, and to do so in writing.