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Legal Dangers Of Video Resumes - Has Elle Woods Met Her Match?

Before you hit the record button, Michael D. Young considers discrimination, copyright/trademark, fairness,  trade secret, slander and libel issues.                                                       .
by Michael D. Young View Biography
Alston & Bird LLP View Firm Credentials
Los Angeles Office
I must be too cloistered here at the law firm because I only see paper resumes. I'm talking about the old fashioned kind with "Education" and "Experience" filling the bulk of the page, and maybe some "Hobbies" or "Personal" ("I like movies") at the bottom to give me something to talk about if the interview is going poorly. ("I like movies too.")
Which is not to say I didn't notice Elle Woods' video application to Harvard Law School in Legally Blonde. (Uh, my wife made me see it. Three times.)
Well, apparently, there is a raging debate out there (o.k., "raging" may be a little excessive) over the use of video resumes. Time and MSNBC have produced articles about it. Web sites have sprung up to exploit it. And blogs are out there lambasting the worst of them. (Did these people really expect to land a job with these things?)
Some (those helping create them for a fee) see video resumes as de rigueur for the new technology generation. Others see them as a dying fad that never caught on for a variety of reasons, not the least of which is employers can't skim through them.
But what about the legal aspects of video resumes? Should employers fear potential discrimination lawsuits if they receive them? Are the candidates themselves at risk for what they put on their videos?
We are not aware of any lawsuits that have sprung from the use of video resumes (either by the employer or employee); but with enough imagination, we could foresee the following possibilities:
1) DISCRIMINATION ISSUES: It is unlawful for employers to discriminate in hiring based on certain factors (such as race, age, sex, religion, etc.) Many of those characteristics that are hidden in a paper resume will be plainly visible in a video resume, leading not only to a greater chance that an employer could make unlawful hiring decisions, but to a greater chance that an unsuccessful candidate will consider bringing claims based on unlawful hiring.
On the other hand, in-person interviews raise the same discrimination risks, and no one is clamoring for the end of those. There is risk when an employer is aware of a candidate's race/age/sex/disability/etc., but those risks can be minimized with proper training and careful practice.
(On the other other hand, watch out for inadvertent bias. There are plenty of studies regarding latent bias. A famous one involves gender bias in orchestra selections, where it was discovered that male musicians were being favored over female musicians. This bias disappeared completely when blind auditions were held, with candidates playing behind a screen.)
2) COPYRIGHT/TRADEMARK Many video-based resumes incorporate images and sounds, including music, trademarks of former employers, photographs, and the like. Here is an example (and I am not suggesting there is anything wrong with this one). If images or sounds are protected by copyright or trademark, their use on a resume could raise liability issues. (Sure there's fair use, but do you want to rely on that amorphous concept?)
3) FAIRNESS/SOCIAL JUSTICE: If use of high-end, expensive video productions becomes the norm for resumes, doesn't this further separate the haves from the have nots? How do you level the playing field when the less affluent candidates are without the resources to produce their own ego videos? Does this lead to the rich getting richer, and the poor losing out on opportunities for advancement?
4) FRAUD/MISREPRESENTATION: As with traditional resumes, video resumes that misrepresent the candidate's background, experience or capabilities could subject the candidate to fraud liability, especially if the false statements are repeated on the job application and signed under penalty of perjury. At a minimum, false resumes can lead to termination of employment, as we have seen in a number of high profile cases.
5) TRADE SECRET DISCLOSURES: Employees in sensitive fields will naturally seek to promote their abilities and experiences. In the process, they could inadvertently disclose sensitive information belonging to their prior employers. (In 2000, Intel and Broadcom had a famous feud over just this issue!) (Risk of trade secret disclosure in interviews is discussed in Workforce Management's article "But It Was Just an Interview!" (free registration required).)
6) SLANDER/LIBEL: As candidates begin to get creative with their resumes (think Elle Woods again), they will naturally begin to push the envelope, incorporating humor or seeking to be edgy. As the envelope gets pushed, issues of slander, libel, trade libel, and other defamation issues could arise. As I said at the outset, apparently I live in a cloistered world when it comes to resumes. But not everyone does. And for those of you out on the wild electronic resume frontier, be you a prospective employee or employer, "Hey, let's be careful out there." (I know, I'm dating myself.)