Say Cheese… Snap! …The Most Damning Evidence in Employment Law

Lisa Sherman
California Labor & Employment Attorney

Before smartphones, emails, text messages and other forms of electronic communication, I would ask during investigations of sexual harassement claims whether the interviewee had any pictures or video from holiday parties, or if they kept hallmark cards that they received from the complainant to refute that the alleged conduct was unwelcome.  Absent such evidence, it was often a he-said/she-said.  

Today, the vast majority of evidence I am provided in harassment cases consist of smartphone pictures and video, text, IM or voicemail messages, e-mails and any other form of electronic communication available.  Cameras are particularly troublesome because they are often undetectable and with one click pictures and video will lead to mass distribution, just as it was depicted in the movie, Sex Tape.  

WHY ARE DEVICES WITH CAMERAS AND VIDEOS IN THE WORKPLACE A PROBLEM?

  • Misappropriation of Trade Secrets
  • Intellectual Property Issues: Copyright/trademark Infringement
  • Unfair Competition
  • Potential Liability for Violation of Privacy of Other Employees (e.g., Photographing coworkers or customers in embarrassing positions)
  • Direct Evidence of Harassment, Discrimination, Retaliation, Bullying or Violation of Company Policies
  • Corporate Espionage
  • Violation of the National Labor Relations Act (e.g., if employers are alleged to have used digital recording devices in surveillance of employees who are engaged in protected conduct, such as reporting unlawful conduct or discussing terms and conditions of employment)
  • Threats to Confidentiality and Security of Personal Information
  • Disclosure of Personal Health Information (e.g., two hospital employees were terminated after they took camera phone photos of patients’ injuries and posted them on social media)
  • Loss of Employee Productivity

NO ONE-SIZE-FITS-ALL POLICY FOR EMPLOYERS

In evaluating whether to allow cameras at all, employers need to evaluate the ways they can be used properly for business needs and weigh it against the above-noted possible misuses.  Businesses with significant privacy concerns, such as a health spa or gym, or those with substantial amounts of confidential information, may decide on a total ban.  Other business may take a more moderate approach and simply restrict the devices from particular uses and areas, such as locker rooms, restrooms, and research and development areas.  

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