Ask Before You Snap

The emergence of cell phones with cameras makes it easy for employees to photograph virtually everything and everyone in the workplace and transmit the images immediately via e-mail.

These images are typically of higher quality than photocopies. They also raise new issues for employers and the workplace.

Most employers permit employees to bring personal cell phones to work. Although some employers restrict employees from receiving and making calls on personal cell phones during working hours, employers should now consider whether to expand cell phone rules to address their photo capabilities.

Sexual harassment is one area where cell phone cameras may breed new types of claims. In one case, I am currently handling, an employee alleges that another worker snapped a photo of her buttocks. Of course, the alleged photographer claims it was just a joke. The employee who was photographed was fully clothed. But employers who provide changing rooms, showers or lockers for workers will want to prohibit cameras in those areas.

Trade secrets is another important area which could be compromised by employees with camera cell phones. Images of confidential materials such as documents, equipment and new products that an employer wants to safeguard should be off limits to employees and visitors with camera technology, including cell phones.

Security and theft prevention methods are another potential target for camera cell phone attacks. Steps should be taken to prevent the "casing" of an area by persons hoping to devise methods for gaining unauthorized access to an employer's premises by photographing exit ways, staircases, control pads or other access control devices.

Even the taking of photographs for seemingly well-meaning reasons, such as during workplace celebrations or break room camaraderie could draw an objection from employees who do not enjoy being photographed. Some businesses are already struggling with employee objections to having their photographs included in marketing materials or other long-standing publications issued by businesses that for years traditionally included photographs of employees. Receiving the employee's consent to be photographed is a common solution. Anyone in the workplace thinking of taking a photograph with their camera cell phone should be cautioned to ask for permission before they do so.

To develop an effective policy, employers should consider how cameras can affect or compromise their workplace operations. The policy should balance the business's needs and be sensitive to employee morale.

Here are some of the images employers may not want viewed through the lens of a camera cell phone:

  • Employee changing rooms
  • Locker rooms
  • Restrooms
  • Showers
  • Research and development areas
  • Financial records
  • Special equipment
  • Confidential materials
  • Emerging products
  • Inventions
  • Security plans
  • Access control devices
  • Restricted areas
  • Vaults
  • Employees who do not want to be photographed

Limits on cell phone cameras should be tailored to an employer's need to protect confidential information, trade secrets or guard against break-ins or theft. Even in working environments where those issues are not a concern, employers should, at a minimum, announce a rule that employees should "ask before you snap," no matter who, where or what the subject.

Stephanie E. Trudeau is an attorney and a certified specialist in labor and employment law who is a partner with the law firm of Ulmer & Berne LLP. She can be reached via e-mail at [email protected] or by phone at (216) 931-6000.

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