Some companies have begun exploring the possibility of conducting early-stage interviews with clients over text message in the hopes of appealing to modern job seeker. But in the event of an employment- related legal action it may still be a toss of the dice whether the pros outweigh the cons.

Jeremy Mittman, a partner specializing in labor and employment matters at Mitchell Silberberg & Knupp, said he has yet to receive inquiries from an employer interested in conducting interviews via text messaging—but he thinks it's coming.

"I imagine it's just a matter of time before that happens given certainly how comfortable especially Millennials are in communicating through type of platform," Mittman said.

Mark Neuberger, of counsel at Foley and Lardner, added his initial reaction was that text message interviews were "the dumbest thing since Pet Rocks." But he conceded they could provide a valuable first impression of a candidate in a world where everyone is looking to do things faster.

Still, the practice could be a bit of a double-edged sword for corporate legal departments and their outside counsel, potentially offering a company a buffer against some employment-related lawsuits while opening up some e-discovery related headaches in the process.

For starters, Mittman pointed out that employers are required to maintain interview records from all interview companies for at least year after a hiring decision has been made. With regards to a typical phone or in-person interview, those records might consist handwritten notes an interviewer took during the conversation.

Depending on the length of a conversation, the full transcript of a text message interview might be a little bit more unwieldy.

"I wonder how easy it would be to actually retain those text records," Mittman said.

The potential for e-discovery tied to any hiring-related litigation in the future would also put more pressure on a company to make sure those conversations are successfully preserved. Neuberger noted there are differences between text messages and other, more formal means of company communications that may be easier to trace.

"The preservation… is much more difficult than if there were an email exchange through the company's email servers," Neuberger said. 

Having text conversations available on demand may cover a company's obligations in the eyes of the law. But whether they are a help or a hindrance in the course of an employment-related trial really depends on the case.

Unlike an interviewer's handwritten notes, for example, a text message conversation is essentially a word-for-word interview transcript.

"I guess it could be good or bad," Mittman said. "It's oftentimes like a he said/she said type issue, but with text messages, as with any electronic communication, it's all in black and white."

However, relative anonymity afforded by the kind of communication might benefit a company that finds itself accused of discrimination in the aftermath of a hiring decision.

Neuberger said it is typically very difficult for companies to successfully mount a defense against those kinds of cases, but the impersonality of text messaging could boost their chances. In other words, it's more difficult to allege discrimination against someone who has never seen or even really spoken to you.

"The best defense is the 'huh, I didn't know' defense," Neuberger said.  

But lawsuits testing the mettle of text message job interviews might not get their day in court any time soon as companies will likely take their time to get a handle on the potential implications.

Erin Price, an associate at Fisher Phillips, equated text messaging with Skype interviews, a practice employers were initially wary of that has now become commonplace.

"I think texting is similar in that employers are interested, they're curious about the benefits that it appears to provide," Price said. "[But] it's hard to really jump into a trend and not be certain about the effects that it could have."