Ban camera phones in the workplace?

June 13, 2008

Concerned about workplace confidentiality and privacy, some employment lawyers have been urging clients to restrict employees’ use of personal cellphone cameras.

“It seems that almost all cellphones now come with cameras,” said Alan Thayer, an employment lawyer in Oregon. “These ‘phones’ can be used to take photographs and videos everywhere.”

In his legal blog (www.ptlaw.com/journal/), Thayer recently cited several non-employment examples of unauthorized camera phone videos — most notably, last year’s execution of Saddam Hussein.

Other instances in the news recently have included secretly recorded videos and photos of women in store checkout lines and on the beach.

Some employers fear that the ubiquitous camera phones could become a legal headache in the workplace.

One concern, Thayer said, is that employees can use cellphones to take inappropriate photographs of co-workers without their permission. The secret photos or videos could constitute harassment or invasion of privacy.

“Think of the photos that some folks take of women and post [on the Internet] without their permission,” Thayer said.
Richard Greenberg, an employment lawyer in New York, agreed. And even if picture-taking doesn’t constitute a legal problem, it can still make some employees uncomfortable.

“It can pose human resource issues,” he said. “Even if they’re just sitting in a cafeteria, some people are uncomfortable having their picture taken.”

Another major concern is whether cellphone cameras could be used to copy confidential documents or record other internal information.

“It sounds kind of James Bond, but I think that may be one of the bigger concerns,” said William E. Hannum III, who practices in Massachusetts.

“I have clients for whom these are huge issues,” Thayer said.

A third area of concern is disgruntled employees who may want to embarrass the boss or gather evidence for filing a legal claim.

In these instances, all sorts of photos — from a supervisor getting upset with an employee, to working conditions, to environmental problems — could be fodder in an employee-employer feud.

“Already there are videos from workplaces that are put on youtube.com for humor, which may be embarrassing to the people involved, even if it’s not of a sexual nature,” said Hannum. “It’s just a step from there to these other [workplace] problems.”

Cellphone policies

To shut off legal woes surrounding camera phones, Thayer suggests that offices adopt a written cellphone policy.

The first step is to determine which employees may need cameras as part of their jobs. It might be a good idea, for example, for truck drivers to carry cameras, in case they have to photograph an accident for insurance purposes, Thayer noted. But the same employer may decide not to allow production workers and customer service representatives to carry camera phones at work.

For employees who are allowed to have camera phones, the employer could require employees to agree that the employer has a right to review all photos and videos on the camera and that the employer has the right to delete any work-related photos, Thayer said.

For all other employees, he suggests banning camera phones outright and prohibiting employees from using personal cellphones during working hours.

Employers should also prohibit employees from posting work-related photos on the Internet, according to Thayer.
The easiest way to address camera phone use, several employment lawyers said, is by updating employee handbooks — something employers should do each year anyway.

“As technology changes, we have to keep up with it,” Hannum said.

Once the employee handbook is updated, employers should follow up with either a company-wide memo or a discussion with employees about why camera phone use is being restricted, he added.

Employee reaction a factor

But John Hutchins, a partner at the Atlanta office of Troutman Sanders, said he thinks camera phone fears are overblown.

“If you have a reason for not having cameras and you already have a policy that says you can’t bring cameras into the workplace, other than the fact that camera phones are a little less noticeable, I really don’t see why someone needs to draft a policy saying you can’t bring a camera phone into the workplace,” he said.

He said one drawback to such a policy is employee reaction.

“I don’t think it would be very well-received by your employees,” he said. “One of the things I always tell people is, ‘Don’t put anything in a policy that you’re not willing to enforce.’”

Confidentiality and privacy issues can be addressed in other ways, he said.

“I’ve seen articles about the need to have a policy that bans camera phones in rest rooms and locker rooms,” Hutchins continued. “The reality is if you’ve caught somebody taking photographs of somebody [else] in a locker room or rest room, you’d fire that person anyway, regardless of whether or not you had a camera phone policy.”

On the other hand, he added, “It certainly doesn’t hurt to have a [camera phone] policy in place — as long as you’re willing to enforce it.”

Written by Nora Lockwood Tooher  |  Filed Under Employment 

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