This week, we got an interesting question via our Facebook page: A company that has recently established a social media presence wants to know whether it’s legal to post pictures of employees at company functions. As usual, the answer is “it depends.”
A number of states have laws that prohibit the use of someone’s likeness without that person’s consent for commercial purposes. The whole point of a company’s social media pages is ultimately to boost the bottom line, whether that goal is achieved through selling more products, attracting outstanding employees, building a reputation for humor, intelligence, and trustworthiness, or other means. Companies that post candid employee photos or photos of employees doing their jobs, serving the community, and so on, do so to make a good impression on potential employees and customers. So I think it’s pretty clear that this is a commercial purpose.
Employers who want to use employee photos can simply ask for the employee’s consent. Like all other employment agreements, this one would best be put in writing, and should spell out what the employer intends to do. Is the company going to post an occasional photo of employees doing their jobs? What about employees enjoying themselves at after-hours company functions? Is the company going to use the employee’s image in actual advertising materials, such as brochures or a commercial? Will the employee have the opportunity to see the photo first? Clearly, an employee might be more comfortable with some photos than others: A smiling photo of an employee helping a customer might be more welcome than a candid photo of the employee’s bathing suit riding up at the company’s Fourth of July picnic at the lake.
Most companies that ask employees to consent to use of their image find that a few are unwilling to agree. I’ve been asked about this a couple of times by folks who assume that the employee who wants to opt out is camera shy, doesn’t like how he or she looks in pictures, or has some sensitivity about appearance. That may be the case, but often the real objection is more serious: The employee has been a victim of stalking or violence, or fears becoming one. This is not information the employee should have to share with the employer in order to get out of the company’s Facebook photo album.
And some employees have a philosophical objection that goes to the very nature of the employment relationship. That argument goes like this: The employer pays employees for their labor; it does not own their image. When you look at it this way, throwing a reluctant employee’s actual personal appearance into the pile of things that paycheck is supposed to cover does seem like an overreach.
The best solution to this dilemma is to ask for consent before using employee photos and to allow employees to withhold their consent, if they wish. Don’t require employees to explain their reasons. Simply find another photo, of employees who are more than happy to show up on the company’s social media page or in its other marketing materials, and move on.