HR Solutions: Employee Photographs

Can an employer use employee photographs for marketing purposes, such as company brochures?

There is no federal regulation that specifically prohibits an employer from using employee photos for business purposes, including marketing company products and services.

However, many states restrict the use of an individual’s name, image, voice, photo or “likeness” for commercial purposes without the person’s prior consent. These statutes are commonly known as “right-of-publicity” or “right-of-privacy” laws. Washington state and others address the topic under “unfair competition” or “personality rights” statutes. Employers should review laws in their states to ensure compliance.

Aside from any legal requirement, employers might still want to obtain an employee’s consent prior to using his or her photo for commercial purposes. If they don’t, workers might expect to be compensated for the use of their image or to receive favorable treatment.

Some employers ask employees to sign a general photo consent release at the onset of employment that allows photos to be used for ID badges or for internal recognition on the company’s intranet. Employers should obtain separate written consent in advance each time an employee’s photo will be used for marketing purposes. The release should outline how the photo will be used and any other applicable conditions. Consult a lawyer for guidance.

Recognize that some people are uncomfortable with having their photo taken because they perceive they will be judged or possibly discriminated against based on their appearance.

In addition, an employee may object to photos because of sincerely held religious beliefs. An employer may be required to provide a reasonable accommodation unless it can show that doing so would create an undue hardship. Consent should be voluntary, and employers should make efforts to accommodate employees who decline to be photographed.

While some people feel that using photos of employees projects a genuine, personal and positive image on the organization, there can be negative consequences as well. For example, if a pictured employee is terminated, he or she may no longer want to represent the company and the company may no longer want to use that person’s image. Changing marketing materials could be costly.

—Amber Clayton, SPHR-CA

 Is it less risky to terminate an employee within the first 90 days of employment?

No. A 60-day or 90-day orientation period (sometimes known as an introductory period, training period or probationary period) doesn’t reduce the legal risks associated with termination.

Even though most new hires are employed “at will,” federal, state and local employment laws still apply.

If the employer is unable to articulate the reason for termination and can’t provide documentation to support its decision, it might have a difficult time fighting a claim of discrimination or retaliation. Therefore, documenting performance or conduct issues for new hires is just as important as documenting progressive discipline for a long-term employee.

Employers should address concerns about performance, attendance or behavior as early as possible in the employment relationship. Overlooking problems may cause employees to believe their performance is acceptable, thus making later disciplinary action seem unfair, discriminatory or retaliatory.

In some situations, termination within the first 60 or 90 days is necessary, but employers should not rush to a decision. Carefully consider the legal risks. For example, suppose a manager wants to fire a new hire for attendance issues because he or she is taking a day or two off a month for medical appointments. Even when a new hire is not yet eligible for paid time off or leave under the federal Family and Medical Leave Act, the employee may be covered under the Americans with Disabilities Act (ADA). If he or she has a disability, making a decision to terminate employment before assessing whether a reasonable accommodation should be provided may be an ADA violation.

Before deciding to terminate someone, it’s important to consider whether new hires have been given the appropriate training and resources to be successful, as well as the opportunity to correct their mistakes. Employers shouldn’t continue to employ an individual who is unable or unwilling to improve his or her behavior after counseling or training is provided.

However, if the person has not been made aware of performance or conduct concerns, the company should consider whether coaching, additional training, a performance improvement plan or a final warning is a more appropriate next step.

—Liz Petersen, SPHR-CA, GPHR