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Camera phones at work: Shoot down this latest legal threat

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in Discrimination and Harassment,Employee Benefits Program,Employment Law,Human Resources

Camera phones now make up more than 4 percent of all worldwide cell phone sales. By 2007, more than half of all cell phones will be equipped with cameras, and cell phones with video capabilities will be the next big thing.

Camera phones aren't all about fun; they can, in fact, increase employee productivity. Examples: A salesperson can easily showcase products to a potential customer on an impromptu basis. A real estate agent can conduct a property tour virtually. And a designer or builder can instantly show his or her progress.

Potential risks loom large

But employers should beware: Applied inappropriately, camera phones can be used to violate employee and customer privacy. Just imagine surfing the Internet only to discover a photo of one of your employees changing clothes in the company's locker room or a picture of an important customer attending a "secret" meeting at your offices.

Thanks to their small size and easily hidden camera function, camera phones are becoming key tools for corporate espionage. In the hands of dishonest employees, they can also lead to fraud, such as a cashier photographing customers' credit cards, including the supposedly secret security codes on the card.

Those risks are propelling some organizations into action. A county courthouse in Michigan recently banned camera phones to ensure the secrecy of jurors and undercover-agent witnesses. A British lawmaker was recently tossed out of Parliament after being caught using one. And the city of Chicago recently banned camera phones from public restrooms.

Old laws cover new technology

No federal or state laws yet regulate the use of camera phones in the workplace, per se. But inappropriate use of camera phones could violate other workplace laws. For example:

  • An employee whose picture is taken in a workplace location where he or she reasonably expected privacy (say, a company restroom) can pursue an 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 could violate the National Labor Re-lations Act, which prohibits em-ployer surveillance that might chill union organizing activity.
  • Intellectual property and unfair competition laws prohibit photographic theft of trade secrets. 

Best protection: a sound policy

The single most important thing you can do is to write, and consistently follow, a camera phone policy. As with all policies, this serves two purposes:

  1. It puts employees on notice about the limits of camera phone use in the workplace.
  2. It prevents employees who are disciplined from claiming that they were singled out for retaliatory or discriminatory reasons.

Once the policy is written, distribute it to employees on a periodic basis, every six months is a good target. Make employees acknowledge in writing that they've received and understand the policy. It's also wise to hold short training sessions, especially for managers charged with enforcing the policy.

Beyond a sound policy, the answer depends on your specific needs. Here are three options:

  1. Ban camera phones on company premises. That's the policy at automotive giants Daimler Chrysler and BMW and even camera-phone manufacturer Samsung. While this ap-proach is the most employer-friendly, it could prove difficult to enforce.
  2. Require employees and visitors to surrender camera phones (and possibly all hand-held technology) before entering R&D areas or other sensitive locations. General Motors follows such a policy.
  3. Require employees to disable the camera function in the workplace, as Texas Instruments does. That approach should include a centralized camera phone registry and a required written acknowledgment of compliance.

If you don't ban camera phones from the workplace altogether, require em-ployees to obtain written permission before taking or distributing photo-graphs or videos inside the workplace.

Continuing technological advancements always present new risks for employers. With camera phones, as with all new devices, it's much easier to manage these risks proactively than to try and impose a policy after your work force has already developed its own expectations and norms of use.

Lauren G. Krasnow is an attorney representing companies in labor and employment law at the international law firm of Torys LLP in New York.

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