What Do You Have to Tell a Candidate Before Recording Their Screen, and How Long Can You Keep It?

What exactly are you recording, and what are you not?

Settle the capture surface before you write a word of disclosure, because the surface decides everything after it. A browser tab showing the assessment is a narrow record you can describe in one sentence. A whole desktop is a copy of whatever else was open: a personal inbox, a Slack thread from a current employer, a calendar entry naming a clinic. Pick the tab, and say so in the sentence that asks permission.

The practical version: request the assessment tab, show the candidate what was actually shared once the session starts, and let them re-pick if the browser handed you a full screen instead. A second monitor is worth naming out loud, because most people forget they have one until something from it appears in a review.

Every extra pixel is a cost you pay three times. It is another category of personal information to disclose at collection ⁴, another thing a reviewer has to look past, and a bigger file frozen in place if a discrimination charge lands ¹. Narrow capture is not squeamishness about surveillance. It is the version you can still explain a year later. See how Olive measures this.

There is a hard line just past the screen. Illinois, under a statute in force since October 2008, defines a biometric identifier as "a retina or iris scan, fingerprint, voiceprint, or scan of hand or face geometry," and requires a written release, after written notice naming the specific purpose and term of use, before one is collected, plus a public written policy setting a retention schedule and destruction "when the initial purpose for collecting or obtaining such identifiers or information has been satisfied or within 3 years of the individual's last interaction with the private entity, whichever occurs first" ⁵. A capture of a work surface collects none of those. A webcam feed, a face match against an ID photo, or a voiceprint does, and that is a different statute with its own consent form.

So do not add a camera because it feels more thorough. Room scans, identity matching and desktop monitoring buy a different kind of evidence at a much higher price, and proctoring software versus an AI-open assessment is the trade worth reading before you install anything.

What do you have to tell them before they start?

Six things, in plain language, on the screen where consent is given, before an account is created or a file is opened: what is captured, what is explicitly not, why you want it, who watches it, how long it is kept, and what a decline gets them instead. A disclosure that arrives after the candidate has already spent an hour is a notice rather than a choice, and it reads that way in a complaint.

Write each line to a candidate who has never seen your product:

• What is captured. "The assessment tab, for the 50 minutes the assignment is open. Your microphone, only if you turn it on."
• What is not. "No camera. No other tabs, windows or applications. Nothing before you start or after you submit."
• Why. "So the reviewer can see how the work was done, not only what was handed in."
• Who watches. "One trained reviewer, plus the hiring manager for this role. Nobody else."
• How long. A date or a rule, not "as needed."
• What a decline gets. The alternative path, named, with the same clock and the same reviewer.

Illinois already writes that sequence into law for a neighboring case, in force since January 1, 2020. An employer using an artificial intelligence analysis of applicant-submitted video interviews, for positions based in Illinois, must before the interview notify the applicant that AI may be used, explain "how the artificial intelligence works and what general types of characteristics it uses to evaluate applicants," and obtain consent ³. That statute reaches AI-analyzed video interviews rather than screen capture during a work sample, so it may not bind your assessment at all. Borrow the order anyway: notice, explanation, consent, all before.

California adds the piece employers most often skip. If the CCPA reaches your business, the notice at collection has to include "the length of time the business intends to retain each category of personal information, including sensitive personal information, or if that is not possible, the criteria used to determine that period," and you may not keep it "longer than is reasonably necessary for that disclosed purpose" ⁴. Applicant data has been in scope since the employment-related exemption expired on December 31, 2022 ⁷. Retention stopped being a back-office setting the moment it became a disclosure.

One register note that saves arguments later: none of this is legal advice, and the wording that binds you depends on where your candidates sit rather than where your office is. Counsel should read the final paragraph. What counsel cannot decide for you is whether the capture is narrow enough to be worth defending, which is the same question underneath honor-system disclosure, detection, or observation.

Does recording audio change the legal question?

More than the screen half does. A screen capture records a person's own acts on a surface you gave them. Audio records a communication, and consent rules for recorded communications are set state by state and do not agree. California makes it an offense to use a recording device to record a confidential communication "without the consent of all parties," where a confidential communication is one carried on in circumstances indicating a party wants it confined to the parties ⁶.

That is why the microphone belongs on its own switch. Bundling audio into a single accept button means a candidate who is uneasy about being recorded aloud has to refuse the entire session, and you lose a good applicant over a permission they would have granted separately.

Think-aloud in writing has to be a real path, not a consolation. A typed running commentary in a panel beside the work produces the same evidence a spoken one does, timestamped the same way, and it is better evidence for anyone whose speech an automatic transcript mangles. Build it in the same sprint as the voice version. Bolted on afterwards it always reads as second class, and a request to use it can be an accommodation request under the ADA, which is its own body of rules covered in ADA accommodations for an AI-based assessment.

Two details that only show up in production. Somebody else may be audible in a candidate's home, and you have then recorded a person who agreed to nothing, so say plainly that a quiet space is not required and typed think-aloud is equivalent. And never ask a candidate to pan a camera around a room. That is a different act with a different legal footprint, and it collects exactly the categories of information you spent the previous section avoiding.

How long can you keep the recording?

Longer than most teams expect at the floor and shorter than most teams assume at the ceiling. US employment law mostly sets minimums. One year is the federal baseline for applicant records, two for larger federal contractors, and once a charge is filed the clock stops running entirely ¹². The ceiling is the purpose you disclosed. Name a period, keep the raw capture only that long, and keep the written finding after that.

The design move that shortens all of it is to stop treating the recording as the record. The capture is a source. What you actually need a year from now is the written finding plus the timestamped excerpt it rests on, which is a fraction of the size and carries none of the incidental content. Keep the findings to the retention floor, and retire the raw file on a much shorter clock once the review is written, the report is released, and whatever dispute window you promised has closed.

Write the freeze into the schedule so nobody has to improvise under pressure. The federal rule is explicit that once a charge is filed the employer preserves records relevant to it until final disposition, and its own example of relevant records names "application forms or test papers completed by an unsuccessful applicant and by all other candidates for the same position as that for which the aggrieved person applied and was rejected" ¹. A recording of a work sample sits squarely inside that description, which means an automated 90-day purge can quietly destroy the thing that would have defended you.

Deletion requests need an owner and a clock. Illinois gives applicants 30 days on AI-analyzed video interviews, and requires the employer to instruct anyone who received a copy to delete it too, backups included ³. Thirty days and a real search of backups is a sound default even where no statute forces it, and it belongs in writing alongside the rest of what belongs in an AI hiring policy.

Make declining a supported outcome, not a failure

Build the decline path before you build the capture, and name it in the disclosure. A candidate who says no gets the same assignment, the same clock and the same reviewer, with a different record: a typed think-aloud, saved intermediate files, a fifteen-minute walkthrough afterwards. If declining costs somebody the round, what you collected was not consent, and the disclosure that described it as optional is now a document working against you.

Record that capture was declined. Do not record why, and keep the reason out of the evaluation entirely. The reasons are rarely about you: a disability, a shared machine, a borrowed laptop from a current employer, a housemate in the room. A note explaining a decline is a note about a protected characteristic often enough that it should never exist.

Apply one capture rule to everyone in the role. Recording some candidates and not others produces two processes and a record showing which one each person got, and that asymmetry is far more dangerous in an investigation than the recording itself ever was.

The test worth applying to the whole design is a parity test. Would you be comfortable if the candidate replayed this recording next to the notes you wrote from it? A capture scoped to the assessment surface, disclosed in advance, watched by two named people and deleted on a date you published passes that easily. A full-desktop capture with an unlimited retention window does not, and the difference shows up as candidate trust long before it shows up in a claim. Saying in the disclosure that a candidate may ask for what was captured and what was written about them costs nothing and changes the tone of the entire process, which is the argument running through candidate-facing reports and legal exposure.

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