Fewer than 20 states address the use of employee photographs without consent, according to Eric Welter, an attorney with the Welter Law Firm. An employer who posts employee pictures on the Internet without their consent increases the company's exposure to employees' claims for damages for unauthorized use of their photographs. In addition, companies that fail to get employee consent put the organization in a precarious position where employee expectations and employment status are concerned.
Legitimate reasons for employee photographs usually involve company identification purposes. High-security workplaces use employee photographs on identification badges; extra copies of employee photographs may be stored in the employee's personnel file, in case the company needs to make a duplicate badge. Additionally, employee photographs may also be a part of I-9 forms. Employers complete I-9 forms for all employees to document eligibility to work for U.S. firms. Many I-9 forms include copies of an employee's driver's license or passport, with photographs.
Employers sometimes increase their appeal to job seekers by posting photographs, and even short video clips, of satisfied employees on their websites. This use of images personalizes the application process and gives potential candidates a glimpse at the average day of an employee. Nevertheless, these are forms of advertisement. Employers cannot justify using photographs or images of employees for advertising purposes without the employees' consent.
Posting employees' photographs on the Internet without their approval could lead to claims for compensation or breach of duty. Employees who believe they are entitled to compensation for advertising could likely have their pick of lawyers to represent them in litigation. In addition, employees' privacy concerns may lead to breach of duty claims that employers might find difficult to defend. The Harvard Law Review explored the potential of future case law arising from claims of unlawful use of subjects' images, speculating that subjects in photographs would own the photographs in which they are depicted.
Employers contemplating the use of employee photographs should protect their interests by obtaining consent. The employer doesn't necessarily have to compensate employees for use of their images; employee consent may indicate the worker's approval to use her photograph without additional compensation. Signed consent forms should become part of the employee's personnel file as well as general business and marketing files.
Employers who don't obtain consent from employees for use of their photographs risk the unintended consequence of those employees expecting favorable treatment. Employees whose photographs are posted on the Internet for company business may expect to be immune from termination. Therefore, obtaining consent is especially important to clarify that use of an employee's photograph isn't indicative of permanent employment status.
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