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 quicky and broadly these files can be shared if they are not careful. 


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Photo of Joseph J. Lazzarotti Joseph J. Lazzarotti

Joseph J. Lazzarotti is a principal in the Berkeley Heights, New Jersey, office of Jackson Lewis P.C. He founded and currently co-leads the firm’s Privacy, Data and Cybersecurity practice group, edits the firm’s Privacy Blog, and is a Certified Information Privacy Professional (CIPP)…

Joseph J. Lazzarotti is a principal in the Berkeley Heights, New Jersey, office of Jackson Lewis P.C. He founded and currently co-leads the firm’s Privacy, Data and Cybersecurity practice group, edits the firm’s Privacy Blog, and is a Certified Information Privacy Professional (CIPP) with the International Association of Privacy Professionals. Trained as an employee benefits lawyer, focused on compliance, Joe also is a member of the firm’s Employee Benefits practice group.

In short, his practice focuses on the matrix of laws governing the privacy, security, and management of data, as well as the impact and regulation of social media. He also counsels companies on compliance, fiduciary, taxation, and administrative matters with respect to employee benefit plans.

Privacy and cybersecurity experience – Joe counsels multinational, national and regional companies in all industries on the broad array of laws, regulations, best practices, and preventive safeguards. The following are examples of areas of focus in his practice:

  • Advising health care providers, business associates, and group health plan sponsors concerning HIPAA/HITECH compliance, including risk assessments, policies and procedures, incident response plan development, vendor assessment and management programs, and training.
  • Coached hundreds of companies through the investigation, remediation, notification, and overall response to data breaches of all kinds – PHI, PII, payment card, etc.
  • Helping organizations address questions about the application, implementation, and overall compliance with European Union’s General Data Protection Regulation (GDPR) and, in particular, its implications in the U.S., together with preparing for the California Consumer Privacy Act.
  • Working with organizations to develop and implement video, audio, and data-driven monitoring and surveillance programs. For instance, in the transportation and related industries, Joe has worked with numerous clients on fleet management programs involving the use of telematics, dash-cams, event data recorders (EDR), and related technologies. He also has advised many clients in the use of biometrics including with regard to consent, data security, and retention issues under BIPA and other laws.
  • Assisting clients with growing state data security mandates to safeguard personal information, including steering clients through detailed risk assessments and converting those assessments into practical “best practice” risk management solutions, including written information security programs (WISPs). Related work includes compliance advice concerning FTC Act, Regulation S-P, GLBA, and New York Reg. 500.
  • Advising clients about best practices for electronic communications, including in social media, as well as when communicating under a “bring your own device” (BYOD) or “company owned personally enabled device” (COPE) environment.
  • Conducting various levels of privacy and data security training for executives and employees
  • Supports organizations through mergers, acquisitions, and reorganizations with regard to the handling of employee and customer data, and the safeguarding of that data during the transaction.
  • Representing organizations in matters involving inquiries into privacy and data security compliance before federal and state agencies including the HHS Office of Civil Rights, Federal Trade Commission, and various state Attorneys General.

Benefits counseling experience – Joe’s work in the benefits counseling area covers many areas of employee benefits law. Below are some examples of that work:

  • As part of the Firm’s Health Care Reform Team, he advises employers and plan sponsors regarding the establishment, administration and operation of fully insured and self-funded health and welfare plans to comply with ERISA, IRC, ACA/PPACA, HIPAA, COBRA, ADA, GINA, and other related laws.
  • Guiding clients through the selection of plan service providers, along with negotiating service agreements with vendors to address plan compliance and operations, while leveraging data security experience to ensure plan data is safeguarded.
  • Counsels plan sponsors on day-to-day compliance and administrative issues affecting plans.
  • Assists in the design and drafting of benefit plan documents, including severance and fringe benefit plans.
  • Advises plan sponsors concerning employee benefit plan operation, administration and correcting errors in operation.

Joe speaks and writes regularly on current employee benefits and data privacy and cybersecurity topics and his work has been published in leading business and legal journals and media outlets, such as The Washington Post, Inside Counsel, Bloomberg, The National Law Journal, Financial Times, Business Insurance, HR Magazine and NPR, as well as the ABA Journal, The American Lawyer, Law360, Bender’s Labor and Employment Bulletin, the Australian Privacy Law Bulletin and the Privacy, and Data Security Law Journal.

Joe served as a judicial law clerk for the Honorable Laura Denvir Stith on the Missouri Court of Appeals.