This article originally appeared in Law360 on May 18, 2022. It is republished here with permission.
In the movie classic "Good Will Hunting," the interviewers are shocked and dismayed when Ben Affleck's character appears at an interview intended for Matt Damon's character.
Based on Damon's resume and other conversations, the interviewers were expecting a completely different person. What made for a great Hollywood fiction in the late 1990s, is now — after the adjustments and adaptations made as a result of the COVID-19 pandemic — a circumstance that companies find themselves grappling with in real life.
At the beginning of the COVID-19 pandemic, employers, by necessity, began conducting more and more virtual interviews. Today, more than two years after the pandemic began, that shift has remained prevalent.
But with the shift away from in-person interviews to remote interviews, employers are facing a new problem — once thought to be only Hollywood fiction: imposter interviewees. That problem is only heightened when the position is fully remote.
Employers thus have become increasingly concerned that the individual hired may not be the person who was interviewed.
For example, just last month, a client contacted an employment partner at our firm, perplexed by the different appearance and speech of her new employee. The person was outgoing and well-prepared in her video interview, but the person who reported to work on the first day seemed out of place and insecure about her abilities.
The client was convinced the new employee had pulled a bait-and-switch and was not the person on the video interview. However, the client was unsure how to proceed with verifying the identity of the person on the video interview.
This client is not alone; employers are reporting more instances of potential imposter interviewees. The motives of the new hires are not necessarily clear. One reason a potential hire may employ a stand-in for their interview is to increase their chances of securing the position because they are a nervous interviewee. Another even more nefarious reason is to gain information about a company's business.
So what can a company do? How can the company be sure that the person on a video or telephone interview is actually the intended interviewee and the individual hired for the position?
Unfortunately, there is not a once-size-fits-all answer to help employers concerned about imposter interviewees. And measures intended to protect a company from this situation do not come without risk.
Indeed, protecting a company from retaining the wrong person is tricky because of the myriad of employment and immigration laws prohibiting access to personal information prior to offering employment.
Below are some considerations to help avoid the imposter interviewee when conducting remote interviews.
Clients may ask why they should not just ask for copies of common forms of photo identification, like a driver's license or passport prior to the interview. That would help show whether the person on the screen is the intended interviewee.
But requesting common forms of photo identification prior to the interview, and prior to hiring, subjects the company to increased litigation and regulatory risk.
For example, a major concern when requiring photographic or other personal identifying information prior to a person starting work is a potential discrimination complaint based on failure to hire. A driver's license or passport provides personal information such as age, health conditions and nationality. Once the hiring company is made aware of these characteristics, potential employees could claim they were not hired because of discrimination based on one of such traits.
Requesting a passport or driver's license comes with other risks as well. Another discrimination risk arises from the Immigrant and Employee Rights Section of the U.S. Department of Justice. Many employers are unfamiliar with the IER. But employers should be familiar with that section of the DOJ.
The IER enforces the anti-discrimination provision of the Immigration and Nationality Act, Title 8 of the U.S. Code, Section 1324b. It allows a person to submit claims based on: (1) citizenship discrimination in hiring, firing, or recruitment or referral for a fee, (2) national origin discrimination in hiring, firing, or recruitment or referral for a fee, (3) unfair documentary practices during the employment eligibility verification, Form I-9 and E-Verify, and (4) retaliation or intimidation.
The little-known section of the DOJ has ramped up its presence and enforcement in recent years, taking aggressive positions against employers, especially in alleged unfair documentary practices investigations.
One of the ways the IER has ramped up enforcement is by pursuing more alleged unfair documentary practice investigations against employers and extracting higher and higher settlement amounts — even in cases in which the employer contests wrongdoing.
So by asking for identification — like a passport or driver's license — prior to making a job offer, an employer may find themselves in the crosshairs of the IER because the IER may claim the employer is discriminating against non-U.S. citizens or violating the prohibition on requesting specific identification when verifying employment authorization.
A person also may submit a complaint to the IER that they were not hired based on national origin or citizenship, using the preinterview request for a passport or driver's license as alleged evidence. It is important that employers familiarize themselves with the IER and the regulations that the section enforces to ensure that its employees do not unintentionally run afoul of them.
As the remote work trend is on the rise, applicants interviewing solely over the phone or video are filling more and more positions. Employers should act now to develop processes to authenticate that the interviewee is actually the individual that shows up for work on day one. It is important that employers do so cautiously — not hastily — and consider potential risks associated with planned measures.
What policies and procedures employers implement will not be a one-size-fits-all approach. Each company should balance the particular circumstances of a company's business, including the likelihood of imposter interviewees, against a company's concern in minimizing allegations of discrimination in hiring.
Importantly, whatever policies or procedures a company ultimately adopts, the company should implement them consistently and uniformly.