Cameraphones Create Liabilities for Employers

Those little phones that also take pictures are dangerous to employers. They have the ability to create big privacy problems on the job. The wrong picture taken at the wrong time in the wrong place could violate not just state law, but federal law as well. Let’s take a moment to consider the downside of this technology and some of the dangers it creates for business owners, and get some ideas for how to protect your business with a cameraphone policy.

I first wrote this article in 2004, when the prediction was that by 2007, more than half of all cell phones would be equipped with cameras. In North Texas we’re probably closer to 100% now. But our familiarity with this technology doesn’t eliminate its potential for mischief, even in the hands of adult employees. Consider the following.

Does your business have a place where people change clothes, or use the restroom? Suppose someone takes a cameraphone picture of someone else in the act of availing themselves of such facilities. All it takes is a bad-judgment nanosecond by the picture taker for that picture to exist in Cyberspace, in digital form. Once they hit “send”, it’s gone. And the fact they’d even take such a picture in the first place gives an indication about their “wisdom.” Can you vouch for the maturity of every one of your employees, all the time?

A practical joke like this can instantly become an employer’s nightmare. An employee whose picture is taken in a work location where privacy is reasonably expected can sue the employer for violation of right-to-privacy laws and, possibly, both state and federal anti-discrimination laws. Ouch.

How about where an employee takes a cameraphone picture or two of some favorite (or not so favorite) co-workers while they are all in an employee meeting? Seems harmless. But photos of employee meetings can violate the National Labor Relations Act, which prohibits employer surveillance that might chill union organizing activity. The problem here isn’t that the employee would go against the business, but that an otherwise innocent act of an employee could bring federal-agency-problems onto the employer. The NRLB could not care less why the picture was taken, nor could the union, so what’s your defense?

Does your business handle customer credit cards? A cameraphone in the hands of a dishonest employee could lead to fraud (against your business) through the photographing of customers’ credit cards and other identifying documents. By the time you caught up to such an ex-employee, do you think they’d have the money to cover the judgment your customer got against your business? Or that they could even afford to pay your attorneys fees to defend such a case? I’m thinking “no.” I’m having visions of those identity theft credit card commercials. The thieves always have a less-than-wealthy economic status.

Does your business have employees? A disgruntled employee could use a cameraphone to fabricate evidence to support their later claim of unlawful harassment or a violation of workplace health and safety rules. Imagine the scene. An employee could artificially create a scene, take a picture of it, and later claim (on the witness stand) that “that’s a fair and accurate representation of what my workplace looked like every day I worked there.” Where’s your controverting evidence, employer? And remember the time-tested wisdom that a picture is worth a thousand words.

Or the employee may just be on their way to their next employer, a job they lined up on your business’s time over the course of a few weeks, first one interview, then the next, none of which you know about, of course, while it’s happening. That next employer might just want to see some of your records, particularly if they’re a competitor. Receipt of a “two-week notice” may be too late.

And then there’s the more obvious use of cameraphones for corporate espionage. A cameraphone user can secretly snap a picture of any part of your research and development process, any secret documents, and so forth, and just walk away.

There are several reasons why cameraphones are so dangerous, as these few example illustrate. First, they are an integral part of a very important device, a cell phone. And since cell phones are everywhere, cameraphones can easily be everywhere too.

Second, they are nearly impossible to detect. Digital cameraphones don’t make a sound, they don’t look like a camera, and you can just look at the phone itself to frame the picture, something people do with phones anyway.

Third, the picture is digital and can be transmitted instantly, and completely secretively. The picture taker doesn’t have to walk out with the picture, they can send it wirelessly, immediately. Not that the taker may even intend to be secretive. The secret transmission part is inherent in the nature of digital images and wireless technology.

And here’s the “thing.” Cameraphones are not “bad.” Nor are the substantial majority of their users. Your employees may not have a malicious thought in their head, and yet their actions can bring potentially huge liabilities on your business. And while employees may be able to afford being ignorant, immature, etc., you as the employer and business owner cannot.

So how do you control the seeming uncontrollable? Establish and publish a set, written policy on cameraphone use in the workplace. And enforce it. What sort of policy? I’m glad you asked.

Let’s start with a few examples of cameraphone policies from some large companies, because those are the ones that make the news. DaimlerChrysler and BMW ban cameraphones altogether, as does cameraphone manufacturer Samsung, with a touch of irony. Texas Instruments requires their employees to disable the camera function in the workplace. GM requires employees and visitors to surrender their cameraphones before entering R&D and other sensitive locations, but allows them otherwise.

In addition to whatever level of use you, as the owner, decide to allow, an effective cameraphone policy should also:
1. Strictly prohibit the taking of photographs and videos-whether by cameraphone or other device-in areas where employees have a reasonable expectation of privacy (which you should define);

2. Require employees to obtain written permission before taking or distributing any photographs, videos, or recordings of any type in the workplace;

3. Set out your employees’ existing nondisclosure and confidentiality obligations; and

4. State the consequences for violation of the policy (perhaps including confiscation of the cameraphone).

As a business owner, you have two options here. First, do nothing and just hope nothing happens. This puts you in the situation of reacting to anything that does happen, and with absolutely no defense whatsoever, other than “I just didn’t get around to taking care of it” or “I didn’t think it was a big deal.” Or, second, you can manage these risks proactively by working with counsel to develop and implement a sound policy on cameraphone usage in your workplace. The people who rely on you for privacy would reasonably, of course, prefer the latter.

And although a strong policy doesn’t guarantee a lack of problems in the future, it does give you much better ability to manage the problems, and you will have more options for dealing with them if and when they arise. You at least have the defense that you did your best.

Being proactive on dealing with this new technology is more a matter of strengthening your business’s profit than increasing it, but it still enhances your bottom line.

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