Modern employers must be concerned with risk exposure in their hiring practices. Technology advancements provide efficiency, but does technology also increase litigation risk? Employers must answer this important question, and below you will find a starting point to your research. So, are video interviews discriminatory?

In 2006 the Office of Federal Contract Compliance Programs (OFCCP) published the Internet Applicant Rule (IAR). The IAR defines the procedures that federal contractors must adhere to regarding applicant tracking in the information age. Although the IAR was written specifically for federal contractors, its standards are viewed as heuristics for all employers that seek to maintain anti-discriminatory practices. With particular focus on the video interview, this article will examine three parts of the IAR:

1. The IAR applies to any candidate who "submits an expression of interest in employment through the Internet or related electronic data technologies." Specifically, the OFCCP lists the following "electronic data technologies":

a. Electronic mail/email
b. Resume databases
c. Job banks
d. Electronic scanning technology
e. Applicant tracking systems/Applicant service providers
f. Applicant screeners

Although not named specifically, employers should assume that video interviews meet the definition of an electronic data technology in the eyes of the OFCCP (see footnote 1). Based on the assumption that applicants who perform video interviews do fall under the definition of the Internet Applicant Rule, what other sections of the IAR are relevant?



2. "The person's application or resume shows that he or she has the basic qualifications for the position in question." It continues, "The contractor considers the individual for employment in a particular position". It's important to note that the term "considers" is interpreted as "assesses the substantive information provided in the expression of interest with respect to any qualifications involved with a particular position." The main difference between video interviews and the electronic data technologies named above - email, job banks, and resume databases - is that prior to a video interview, an initial resume screen has already been completed (see footnote 2). Only qualified applicants are invited to respond to a video interview, which asks the applicant about job related skills. Video interviews differ from video resumes on this point. In the case of a video resume, the candidate has not yet been screened for job-related qualifications, nor has the employer "considered" the candidate. Employers would be wise to carefully consider to risks of video resumes.



3. The Internet Applicant Rule "prescribes the records contractors must maintain about hiring done through use of the Internet or related electronic data technologies; for companies with fewer than 150 employees or a contract of at least $150,000, the record retention period is one year. Contractors with at least 150 employees and a contract of $150,000 are required to maintain the records for a period of two years." It is recommended that employers ensure adequate archival from their video interview vendor.

In summary, video interviews comply with OFCCP requirements under the Internet Applicant Rule. When considering the legality of video interviews, the key points to remember are:

1. Conduct the video interview after considering the applicant's job-related qualifications



2. Ensure the same equipment, process, and opportunity to similarly situated job seekers



3. Add transparency by archiving each video interview for two years


(1) In the FAQ of IAR, the OFCCP indicates that it will evaluate any technology employed in the recruitment process for the electronic transfer of data, and classify such technology as an "electronic data technology".

(2) Regarding this detail the OFCCP explains, "The Internet Applicant rule does not specify how or when in the selection process a contractor may screen for a job seeker's interest in the specific position, keeping in mind that the interest screens should be facially neutral and consistently and uniformly applied to similarly situated job seekers." With regards to video interviews, "interest" is indicated when a candidate submits an application or resume, which are "facially neutral" media. After the indication of interest and "consideration" by the employer, recruitment tools that are not facially neutral - face-to-face interviews, video interviews, etc. - are appropriate to use.

By: Bill Allred, VP of Sales & Marketing at HireVue.

Article courtesy of the Recruiting Blogswap, a content exchange service sponsored by CollegeRecruiter.com, a leading site for college students looking for internships and recent graduates searching entry-level jobs and other career opportunities.