:    Monday, April 06, 2012
    :    Client.Name


    ISSUE:     Pre-Recorded Video Job Interviews Legalities with respect to Discrimination.

    To begin our review of the legal issues related to and concerns arising from the use of pre-recorded video interviews (and CVs) in considering prospective candidates for employment; we enter our discussion, by taking a top-down approach to achieve a quick introduction and organization to the governing structure of the applicable laws and governing jurisdictions among the federal government and the various states with respect to the issue of employment discrimination.

    Note that while each of the fifty states have their various anti-discrimination laws with respect to employment; the US Constitution (and the applicable amendments, such as the right to the equal protection of the laws and the civil rights amendment) establishes each of our individual rights, which also serve as the bare-minimum standard for mandatory compliance for all fifty states. Thus, while each state may enact laws that increase or enhance the protection of our rights (such as to be free from employment discrimination), no state may enact laws that work to reduce the protections guaranteed by our fundamental individual constitutional rights.
    This summary intro should provide the reader a sufficient helpful understanding and give broad overview of our legal structure; and also provide the reader an angle of entry into this immense area of law and help keep the right perspective as s/he proceeds through the various legal issues and analysis presented throughout the reset of this legal memo.

    Employer Duties Under Antidiscrimination Laws.
    In addition to these laws prohibiting employers from discriminating against job seekers (and employees), an employer has the affirmative legal duty to take steps to prevent discrimination. And in the event that discrimination does occur, the company is legal obligated to prevent it or remediate its occurrence and without delay. In the case where such circumstances come to your attention, by responding after an undue delay will likely result in you and even the company being personally held liable for the consequences. This is because of the undue delay you failed to perform you legal duty to stop, proven, or remediate the discriminatory conduct and the resulting harm. This means employers must:

    • have policies that prohibit discrimination and tell employees what to do if they experience discrimination;
    • make sure managers and supervisors don’t discriminate;
    • make sure policies and procedures don’t have an unfair impact on a protected classification or group of people;
    • promptly investigate complaints of discrimination; and
    • take effective action against those who discriminate.

    The best way to be sure to avoid discrimination of either employees or job seekers, is if you and the company’s other managers base all of your employment decisions on criteria related to the job. And by making this company policy as the standard operating procedure for all employees in any decision to act is a sure measure that discrimination doesn’t manifest down the road. Moreover, if someone does complain about discrimination, or if prejudicial behavior otherwise comes to your attention, always adhere to the company’s reporting policies, to the letter (don’t retaliate).

    After conducting over two hours of research on discrimination issues employers must address or be aware of when using pre-recorded video interviews to evaluate prospective candidates for employment, the general consensus I found (mostly based on the complete lacking of treatment of this question) was that this form of interviewing was open to abuse by employers who may screen the reverse-interviewees based on an illegal discriminatory classification, however, live interviews are just as open to this potential for abuse.  Also, there are no laws that give pre-recorded video interviews any distinct treatments. Thus, with respect to the treatment of pre-recorded video interviews by the laws of the various jurisdictions will be the same as a live interview.

    Engaging A Service Company To Hiring Candidates Through Recorded Interviews.

    Here we appraisal the legalities involved when using the services of third-party business provided for the purpose of reviewing recorded interviews and CVs for prospective employment of candidates. By engaging another business to conduct this method of hiring, additional legal duties and liabilities arise with respect to the anti-decimation laws. After conducting a significant survey of such online service providers and reviewing their applicable contracts (typically contained in the provisions of their websites terms of service and conditions of use – employer agreement) there are a number of acknowledgements, representations, warranties and covenants the employer makes to the website company (and indirectly to the prospective job seekers) granting them affirmative duties and personal liabilities with respect to discriminatory employment.

    To better server the purpose of this portion of out discussion, I while use the company TalentRooster and its ‘Employer Terms of Service Agreement’ as the representative of the survey sample. At TalentRooster.com, a video interview website, Under the terms of service agreement for the employer, http://www.talentrooster.com/Home/EmployerTOS, Section 2(h) the employers grant of access to user their services is under is limited by the employers agreement that his use of these their video interview services and resource will not conducted in a discriminatory manner.

    2.   Access Authority and Conditions: Subject to acceptance of and compliance with each of the terms of this Agreement and applicable law, TalentRooster agrees to permit Employer access to the Database via the Website for the purposes of viewing and downloading available Video Profiles solely for Employer’s use in making hiring decisions with respect to Candidates. Continued access to the Database and use of the Video Profiles shall be in accordance with and subject to the following:
    (h) Employer covenants that it will not discriminate against any Candidate on the basis of gender, race, color, national origin, religious beliefs, age, marital status, disability, or sexual orientation. …

    This provision provides TalentRooster with discrimination as a basis to terminate their service agreement to the employer and that such conduct would be in breach of the limitation of use granted to the employer. These nuances are constructed together for the purpose to protect TalentRooster for liability for damages to employee users caused by such prohibited use by an employer.

    In the second provision following under the same section, the agreement for employer’s grant of use of service is conditioned on the employer giving a legally binding promise to ‘indemnify’, ‘defend’ and ‘hold harmless’ TalentRooster (and other parties specifically listed) with respect to any action file against the site for the employer’s actual or alleged acts of discrimination – broadly stated the employer will come to court and defend TalentRooster by putting his or her self in its place.

    2.(h)     … Employer shall indemnify, defend and hold harmless TalentRooster, its affiliates, TalentRooster’s partner agencies, and their respective officers, agents, directors, trustees, and employees, against and in respect of any loss, cost, damage, deficiency, expense (including reasonable attorneys’ fees), and liability arising from or related to Employer’s illegal discrimination or alleged illegal discrimination.
    [/END MEMO]

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