Check out our labor colleagues’ recent post (see Labor & Collective Bargaining blog) concerning the permissibility of a policy to prohibit audio / video recording in the workplace under the National Labor Relations Act, and the decision in Whole Foods Market, Inc., Case No. 1-CA-96965 (10/30/13).

Most of us do not go too far – whether at work or at home – without our favorite smartphone, tablet or other mobile device(s) in hand. The audio and video recording capabilities on these devices are standard equipment these days and increasingly sophisticated, and in some cases can be quite surreptitious. For many employers, that functionality makes it more difficult to, among other things: (i) safeguard proprietary and confidential company information, trade secrets, and personal information, (ii) maintain employee, customer and / or patient privacy, (iii) control internal communications, (iv) prevent spoliation of data, and (v) avoid discrimination and harassment activity. So, it is not hard to see why many employers would want to prohibit this activity in the workplace. When doing so, all employers certainly should consider the labor law issues discussed in our colleagues’ post and craft a clear and practical policy.

But what should employers consider when drafting a policy that prohibits certain photography / recording in the workplace? Here are some thoughts:

• Be clear. The policy should not leave employees to wonder about when recording is prohibited and by whom. For example, taking photos and recordings may be prohibited in certain circumstances, for certain events/information, or by certain company employees, but not at other times, consistent with applicable law.
• Be technology neutral. Your policy should be written to cover new devices/technolgies that enter the market without having to be amended.
• Keep in mind that not all recording is bad. In many cases, photos and audio or video recordings can benefit the business. For example, video recording could significantly enhance training and documentation capabilities.  
• Avoid unambiguous language. Overbroad language can create legal risks and confusion for employees. For example, prohibiting employees from engaging in “any and all” recording in the workplace would likely be impermissible under the NLRA.  
• Be practical and consistent in implementation and enforcement. In some cases, a policy might not be enough to address the potential risks. So, a company may want to consider not allowing devices to be present when performing certain functions. And, like all policies, disciplining some employees and not others for doing the same thing creates a range of risks.
• Require consents/releases when needed. When photos or recordings are permitted and made for a commercial purpose, a number of states (e.g., California and New York) have statutory and/or common law protections. In general, a written consent is required. In addition to getting the individuals’ consent, the company also may want to obtain from the person(s) sufficient rights to the images captured (and as may be edited) for the intended uses, as well as a release from claims concerning such uses. 
• Address how the photos/recordings should be handled. When photos or recordings are needed for business purposes, employees should be advised about appropriate document management practices to ensure the photos/recordings are properly made, filed, saved, safeguarded, and destroyed when no longer needed. For example, photos and recordings could capture information that constitutes protected health information under HIPAA. In that case, employees need to be advised about and trained with respect to the applicable HIPAA policies and procedures.
• Inform employees of the risks of making and using electronic photos and recordings. For example, when snapping photos or recording, employees may not be thinking about what is in the background visually or what sounds or conversations are being captured.  They also may not think about how quickly and broadly these files can be shared if they are not careful.