Cameraphones: Innocuous Gadgets or Workplace Threats

Cameraphones-the latest ubiquitous technology-come with their own dangers.

By Barbara M. Roth and Lauren G. Krasnow

Synopsis: More employers are realizing the need for a formal policy that puts employees on notice as to the limits of permissible cameraphone use in the workplace. Although written by Americans, this article has relevance in the South African context.

Barbara M. Roth (broth@torys.com) is a partner and head of the Labor and Employment Group at Torys LLP, an international business law firm with offices in New York andToronto. Lauren G. Krasnow (lkrasnow@torys.com) is a senior associate at Torys specializing in labor and employment law. They counsel and represent employers in the full spectrum of employment law: day-to-day employee-relations issues, long-range strategic planning and risk management, employee and management training and litigation.

Employers have become wary of these fun little devices because they have the potential to create big privacy problems on the job.

Not surprisingly, we’re being asked to advise clients on employees’ use of cameraphones. More employers are realizing the need for a formal policy that puts employees on notice as to the limits of permissible cameraphone use in the workplace.

Although no federal or state laws yet regulate the use of cameraphones in the workplace per se, inappropriate use of cameraphones can violate myriad laws already on the books. An employee whose picture is taken in a work location where privacy is reasonably expected (e.g., a company changing room or restroom) can assert a cause of action under most states’ tort laws for violation of privacy and, possibly, a claim under federal, state or local anti-discrimination laws.

Photos of employee meetings can violate the National Labor Relations Act, which prohibits employer surveillance that might chill union organizing activity. And, of course, intellectual property and unfair competition laws prohibit photographic theft of trade secrets.

Several risks are manifest. Because of their small size and easily hidden camera function, cameraphones are obvious potential tools for corporate espionage; a cameraphone user can secretly snap a picture of any part of an R&D process and just walk away. In the hands of dishonest employees, cameraphones can also lead to fraud through the covert photographing of customers’ credit cards and identification documents. Finally, a disgruntled employee can use a cameraphone to fabricate evidence to support a claim of unlawful harassment or a violation of workplace health and safety rules.

These risks have already propelled some organizations to act. One Michigan county recently banned cameraphones from its courthouse to ensure the protection of jurors and undercover witnesses. A British Member of Parliament was recently removed from the House of Commons after he was caught using the device. The city of Chicagohas barred cameraphones from public restrooms.

So how can a responsible enterprise protect itself? The single most important thing an employer can do is create and consistently follow a cameraphone policy. As with all employment policies, this serves two purposes: it puts employees on notice of the limits of permissible cameraphone use in the workplace and prevents employees who are disciplined from claiming that they were singled out for retaliatory, discriminatory or other unlawful reasons.

Companies should distribute the written policy to employees periodically (perhaps every six months) and require them to acknowledge in writing that they’ve received and understood the policy. Short training sessions-especially for managers charged with enforcing the guidelines-are also a good idea.

What should your policy say? An effective policy should:

1. Strictly prohibit the taking of photographs and videos-whether by cameraphone or any other device-in areas such as restrooms, locker rooms and other facilities where employees have a reasonable expectation of privacy;

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

3. Reiterate employees’ existing nondisclosure and confidentiality obligations; and

4. State the consequences for violation of the policy (e.g., employer confiscation of the cameraphone, “appropriate disciplinary measures, up to and including termination of employment,” and the employer’s intent to seek any available means of legal redress)

Beyond these measures, the guidelines depend on your organization’s specific needs and structure. The most extreme option is to ban cameraphones on company premises altogether, as do automotive giants DaimlerChrysler and BMW and-ironically-cameraphone manufacturer Samsung.

A more permissive option, adopted by General Motors, is to require employees and visitors to surrender cameraphones only before entering R&D areas and other sensitive locations. A third option is to require employees to disable the camera function in the workplace, as Texas Instruments does. Whichever option you choose, constant and uniform enforcement is critical.

A strong policy is vital because the devices now constitute more than 4 percent of worldwide cell phone sales. By 2007, more than half of all cell phones will be equipped with cameras. The potential usefulness of cameraphones in the workplace will continue to grow as technological improvements lead to improved photograph resolution.

On the positive side, some employers actually distribute cameraphones to their workers. The small size of the devices and their ability to take and send digital photographs (and in some cases, videos) instantly over the Internet have the potential to increase employee productivity. For example, a salesperson could, on the spur of the moment, showcase her products to a potential buyer, eliminating the need to schedule a formal sales call or to lug heavy products. A real estate agent visiting a property could provide a virtual tour without requiring a client to leave home.

Continuing technological advancements present new risks for employers. With cameraphones, as with all new devices, it is far easier to manage these risks proactively than to react after problems arise.