Can an employer use employees' photographs for marketing purposes such as a company web site or promotional literature?

There is no federal regulation which specifically prohibits an employer from using employee photos for business purposes including marketing the employer's products and services. There are however many states that 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. Some states address the topic under "unfair competition" or "personality rights" laws. Employers should review their applicable state laws and ensure compliance.

Aside from any legal requirement, employers may still want to obtain an employee's consent prior to photographing the employee and using the photo for commercial purposes. Employers who use an employee's photo for marketing purposes without consent may find themselves in a situation where employees expect to be compensated for the use of their image or employees may expect that they will receive favorable treatment as a result of their image being used. Some employers have employees sign a general photo release at the onset of employment in order to create ID badges or photos which would be used on the company's intranet or for future recognition internally. An employer should have an employee sign a separate release prior to and each time an employee's photo will be used for marketing purposes. The release should outline how the photos will be used and any other applicable conditions. Employers should consult with legal counsel for guidance on release language.

Another consideration when using employee photos is that some people are uncomfortable with their photo being taken because they perceive that they will be judged or possibly discriminated against based on their appearance. For instance, 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 an undue hardship in doing so. Consent should be voluntary and employers should make efforts to accommodate employees who decline to be photographed.

While some employers feel the use of employees' photos project a genuine, personal and positive image on the organization, there may be a negative consequence. For example, if an employer uses an employee's image for commercial purposes and the employee is terminated, a former employee may no longer want to represent the company and the company may no longer want to use his/her image. A change in marketing materials could be very costly to the organization. Employers may want to determine if it is more beneficial to use non-employee photos for marketing purposes.