Camera Phones In The Workplace: To Ban Or Not To Ban

By Andrea G. Chatfield

It is no secret that workers in the high tech industry love their electronic gadgets. The more advanced and powerful, the better. However, there is one personal technology gadget that can cause tremendous harm to high tech companies if abused. The use of camera phones, and other portable devices with embedded cameras or video capability, in the workplace is spreading like wildfire. The number of people with camera phones was estimated at 8 million last year but a report issued this summer by IT analyst firm iSupply estimated that number would jump to 488 million by 2008.

While incredibly useful (and cool!), camera phones also increase the risk of corporate espionage, employee harassment, invasion of privacy, and a litany of other offenses that can create liability for employers. The litigation over these types of problems is costly and time consuming, but can be minimized with proactive workplace policies.

The best way to address the issue of camera phones in the workplace is proactively rather than reactively. Currently, there are no laws that specifically address the use of camera phones. Employers generally have a wide latitude on regulating behavior in their own workplaces. Given the prevalence of these devices, employers must start to impose workplace policies that address the presence and/or the use of camera phones in the workplace. Such policies should also address personal cell phones. There are a number of ways a company can handle these issues, but basically it comes down to whether or not the use and/or presence of the phones should be banned in all or parts of an employer’s place of work. This is becoming an ongoing debate.

Reasons for wanting a ban of some sort are based on the fact that high tech companies, which are embracing camera phones and other types of advanced electronic devices, are ironically, among the most vulnerable to their abuse. Camera phones can be misused to disclose and even broadcast, in an instant, images of trade secrets, research and development processes, proprietary materials, and confidential information about employees, clients, or customers. Ironically, a leading maker of camera phones has banned workers and visitors from bringing camera phones into certain of its factories. Other high tech companies have also banned the presence of camera phones in certain areas of its facilities.

Camera phones can easily become instruments of harassment in the wrong hands. Images of coworkers in private areas such as dressing areas, bathrooms, and locker rooms can be embarrassing and quickly transmitted to countless other people. Taking a picture everyday of a female coworker to show other male workers what she is wearing may seem like a harmless joke to some, but highly offensive and harassing to others.

By tolerating the misuse of camera phones in the workplace, employers put themselves at risk for lawsuits under the Massachusetts privacy statute (M.G.L. ch. 214, §1B) which provides all persons, including employees in the workplace, with a right against unreasonable or serious interference with their privacy. Moreover, if the employee has a video cell phone, which also records sound, they risk being in breach of federal and state wiretap laws if they record others in the workplace without their knowledge or consent.

On the other hand, there are a number of experts who think a ban is too harsh. They cite the difficulty of enforcing a ban given how easy it is to conceal a camera phone on one’s person. Many employees rely heavily on the use of such devices to stay in touch with the office and customers, and for some jobs, camera phones may be very effective and useful. A service technician may be able to identify a problem more quickly by sending an image of a customer’s piece of equipment to the home office for assessment. A ban on personal property devices may also be considered detrimental to the firm’s workplace culture and morale. Further, employers may not like the options for enforcing a ban, such as confiscating a camera phone that is an employee’s or visitor’s personal property, or terminating an employee for bringing one to work.

The issue, however, need not be an all or nothing proposition. Certain employers are deciding that the presence or use of camera phones, and other personal cell phones, may be acceptable in some areas, but not in others, such as laboratories, prototype testing areas, R&D facilities, human resources offices, as well as dressing rooms or bathrooms. If this is the approach an employer decides to take, it should also consider posting the policy or signs in the restricted areas and determine if it needs to provide a method for employees to secure their phones prior to entering restricted areas.

Employers can also decide to restrict the use, but not the presence, of camera and other personal cell phones during work time. These types of policies generally state that employees should not use their phones and should shut them off while working, and allow them to check their phones during authorized breaks. In any event, when companies provide employees with cell phones for use within their jobs, unless there is a business necessity to have visual capabilities, they should choose phones that do not have camera or video functions, or determine if such functions can be disabled.

Finally, technology itself may provide the ultimate solution. While not widely used or available yet, there are several new technologies that are designed to either jam a camera phone signal or sound an alarm when it detects a signal in use. The jamming devices can be installed in certain areas of the workplace called wireless privacy zones. Camera phones that are in the privacy zones are disabled from sending images. Once they are taken out of the zone, they are activated again. Whether such technologies can be used legally in private workplaces remains to be seen.

Employers do have much discretion on what kind of policy they want to establish, as long as they do so consistently and communicate the policy clearly. A policy alone cannot physically prevent someone who wants to steal confidential information from doing so, but it can decrease the risk by discouraging employees from bringing such devices to work. Further, by sending a message to all employees of the problems such devices can pose if misused, employees themselves may also be more vigilant in ensuring that no one, including themselves, is misusing a camera phone in the workplace.

Andrea G. Chatfield is a member of the Employment Law Practice Group and the Corporate Department at the law firm of McLane, Graf, Raulerson & Middleton, P.A. Andrea can be reached at 603-628-1341 or andrea.chatfield@mclane.com. The McLane Law Firm is the largest full-service law firm in the state of New Hampshire, with offices in Concord, Manchester and Portsmouth.