As employers adopt virtual interviewing as a new norm, it’s time to revisit the remote process for legal compliance

Attorney Terry Bonnette, co-managing partner of Detroit-based management-side labor and employment law firm Nemeth Law, P.C., cautions employers to be aware of the potential for biases when conducting virtual interviews of prospective employees.

“Remote interviewing and hiring have quickly become commonplace amid the pandemic, but what hasn’t been widely discussed is how issues that don’t typically arise during in-person interviews might increase the possibility of unintentional bias,” Bonnette said.

3 considerations to keep in mind when conducting remote interviews:

1. Access: Initially, there is the question of whether all potential candidates have access to the platforms being used, or whether increased reliance on technology excludes some potential candidates in protected classes who historically have not had the same access to technology.  But beyond that is the additional question of whether the web platform used by the employer is ADA-compliant.  For prospective employees with a disability that prevents them from fully operating the web platform during an interview, what accommodations are available/offered?  
2. Implicit bias: Implicit bias can creep into the process in a variety of ways.  The quality of technology can impact the interviewer’s overall impression. Candidates who access the platform using a laptop with highspeed internet access and a high-resolution camera enhanced with focused LED lighting may appear more polished than someone who is using a cell phone or who has spotty internet service.  Keep in mind, if they are hired, they will have access to your company’s technology.  Anyone can have technology issues in a virtual platform.  Be careful of making an association between ease of use or lack of tech savviness with age.  Also, to the degree possible, filter out whatever is going on in the background.  Décor, pictures, unintended interruptions by household members or external noise may unfairly shape perceptions of the candidate in ways that have nothing to do with job qualifications; further, they may give the interviewer information about the candidate, such as their caregiving responsibilities for children or aging parents, that should not be used in the decision-making process. 
3. Professional work environment:  While the interviewer is advised to ignore what’s going on behind the interviewee, the same is not true for their own background.  Interviewers need to be aware of what is appearing in their own backdrop. This is true not just for interviews, but for all work from home meetings.  Anything that might contribute to a hostile work environment in the office should be removed from the line of sight for virtual meetings. 

5 considerations on the recording of interviews: 

“Live job interviews are almost never recorded,” Bonnette said.  “Yet, on a virtual platform, where the meeting can be easily recorded with the push of a button, the temptation is there.  Where there are multiple decision makers, the temptation may be greater to record one interview that they can all watch instead of scheduling multiple interviews or attempting to find a time when all are available.” 

He suggests the following considerations:

1. Will the interview be recorded for all candidates or only select candidates?
2. Has permission been received from the candidate to have the interview recorded? Is permission required by the laws of your state?
3. Who will be able to see the recording?  
4. Will the recording be subject to AI analysis?  
5. How will the recording be retained to satisfy EEO record keeping requirements?

“As employers adopt virtual interviewing as the new norm, it’s a good time to revisit the entire interviewing process for compliance with regulations and guidelines,” Bonnette said.

About Nemeth Law, P.C.

Nemeth Law specializes in employment litigation, traditional labor law, management consultation, arbitration, mediation, and workplace investigation for private and public sector employers. It is the largest woman-owned law firm in Michigan to exclusively represent management in the prevention, resolution and litigation of labor and employment disputes.