In what ways can a company use (or not use) photos of its employees?
Posted October 25, 2016
By Katie Loehrke, editor, J. J. Keller & Associates, Inc.
Employers use employee photographs for a number of reasons. The most common use may be for individual employee identification, which may double as a company security card that allows access to the employer’s facilities.
While most employees are agreeable to having their photo taken for the purpose of security, not all will like the idea of having their photos taken, particularly if they are being displayed somewhere public – though still within the company. Some employees may just be uncomfortable with photographs in general, but others may have more serious reasons for preferring to keep their photograph private. An individual may be the victim of a stalker, for example, and may prefer to maintain as much anonymity as possible.
One of the easiest ways to deal with this situation is to give employees the option of being included in an initiative including photographs without requiring them to explain their reasoning.
It may be difficult for employees who prefer to avoid photographs to understand an employer’s desire to have one made public. If a valid business reason does exist for displaying employees’ photos, employers should explain what is to be accomplished. A simple explanation — particularly if benefits exist for individual employees — may encourage employees to participate.
Commercial use of employee likenesses
While internal use of employee photographs is typically an acceptable practice, some states have laws that prohibit the commercial use of employee likenesses without consent. These laws are usually found in a state’s civil code. In states where such laws exist, employers may not use employees’ photos (without express permission) in direct marketing, which typically includes catalogs, promotional mailings or emails, or even promotional videos.
Many employers use employee photos on a company website in an effort to accurately represent company culture (these may include candid photos, group shots, or even employee testimonials). However, this would likely be considered commercial use, since it is a form of advertisement for the employer. The same is true for employee likenesses used as part of a company’s social media presence.
Even in states where a law doesn’t require consent, it’s a good idea for employers to get a signed agreement from employees when photos will be used in a commercial way. An employee should understand precisely how and where his or her likeness will be used.
Photographs and the risk of a discrimination claim
Even some internal use of photographs can cause trouble for employers. For instance, employers sometimes ask whether they may take pictures of applicants to help them remember which candidate was which. This is a risky practice, as it may create a preserved record of certain protected characteristics (race, relative age, sex, national origin, and perhaps even the presence or absence of a disability).
Once an employer has collected protected information (whether photographically or otherwise), it has the burden of proving that it wasn’t used to make discriminatory employment decisions. For that reason, it’s best for employers to refrain from taking photographs of applicants.
Similar risks can come with taking photos of current employees, though it depends largely how the photographs are used. In most cases, individuals with responsibilities for making employment decisions will already be familiar with what an employee looks like, so having access to a photo may not make much of a difference.
However, there are situations in which photos of current employees could get an employer into trouble. If, for example, company executives are using photographs to determine which employees to include in a layoff, the risk of a discrimination claim may rise. Any time photos are being used to identify employees’ protected characteristics and make employment decisions based on them, employers open themselves up to liability.
About the author:
Katie Loehrke is a human resources subject matter expert and editor with J. J. Keller & Associates, Inc., a nationally recognized compliance resource firm. The company offers a diverse line of products and services to address the broad range of responsibilities held by HR and corporate professionals. Loehrke specializes in employment law topics such as discrimination, privacy and social media, and affirmative action. She is the editor of J. J. Keller’s Employment Law Today newsletter and its Employment Law Essentials manual. For more information, visit www.jjkeller.com/hr and www.prospera.com.