Employee Privacy Online – What You Need To Know

The growth of the internet has changed so much about how we do business. To keep up, you need to have a website as well as social media, and you need to keep both updated regularly with news about your business. When you do have news to share, it can be super exciting and tempting to post about it right away along with a photo of your employee that made it happen! But, before you do, consider that your employees’ privacy may be at stake. This post will explore the topic around employers’ rights to post about their employees online.

How Does Employee Privacy Law Work Online?

There is a lot of legislation around employee privacy, but many of them have not yet caught up to our increasingly digital business habits. Laws change over time and can depend on your location, so do not consider this post to be legal advice. “There are many states that make it unlawful to use someone’s likeness for commercial purposes without their prior consent,” our HR Practitioner, Jake Dufour explains. “Commercial purposes” can be interpreted pretty broadly, so a good rule of thumb in those situations is to ask the employee for written consent.

If you’re ever questioning if your digital presence is a potential liability, air on the side of caution. Consider that one person’s assumption about their right to privacy can vary from someone else’s and could cause bigger issues for your company down the line. 

It’s Never Safe To Assume You’re Free To Post Online

It simply isn’t safe to assume that you can use your employees name, quotes, or images online without their consent. Our HR Practitioner, Molly Bruner says whenever any of her clients want to use photos of their employees on their website or social media, she encourages them to provide the employees with a photography and social media release. “This outlines the platforms being used, the type of information being used, such as photos, and so forth, and gets explicit permission from employees.” Molly explains that most employees will not take issue with this, but using a photography and social media release will help avoid potential problems. 

Avoid Requiring Employee Participation Online

It is not good practice to simply make participation online a job requirement across the board for your employees. Molly recommends offering employees the photography and social media release during their onboarding process to keep on file throughout the duration of their employment. This lets you know from the get-go if an employee does not wish to be pictured online. “Usually, if an employee doesn’t want to be pictured, they have a very good reason to opt-out and it only breeds animosity and poor employee relations to try and make it a requirement.”

This release should be updated every year, and your employees should know who to speak to about their privacy rights online and off. Employers can easily email all of their employees letting them know that if anyone wishes to update their release, they can do so with their HR practitioner or manager when relevant.  

Respecting Your Employees’ Privacy Wishes

So what do you do if an employee doesn’t want to be on your website or social media? If a team member wishes to remain anonymous online, then employers must respect their wishes. More than that, they must take precautions to make sure the employee is not in company photos, not mentioned on the website or social media, or other online platforms. Employers should also make sure that if there is a website or social media manager, they are aware of the employees that should be excluded from the various platforms. 

This is especially important if photos taken at a company event, for example, would then be used in a recruitment campaign, publicity, promotional items, company website, social media, and any other public, external platform. It is best to have waivers signed ahead of time, and if possible, let employees know that they might be photographed at events and how those photos are intended to be used. If someone isn’t comfortable, allow them to step out without trying to pressure them into being photographed. 

When Can This Be Required?

The only time you can require an employee to participate online is when it is explicitly stated in their job description prior to employment and it is an essential aspect of their job. Jake says, “Employers can require that employees create an employer sponsored LinkedIn profile if that is a condition of employment. Employers cannot require employees to hand over their login information for their personal social media accounts, however.” Molly adds that for positions like social media manager, “the company should provide a company profile to the employee, rather than having to use their own personal profiles.” 

Appropriately Advocating For Your Brand Online

Using the company’s social media page is one aspect, but many companies want their employees to share about their job on their personal social media accounts. If this is the case for your brand, keep in mind that you can’t require your employees to use social media outside of their direct job function. 

It is, however, appropriate to dictate certain aspects of your employees’ professional social media accounts. For example, if your employees are active on LinkedIn, it is reasonable to provide your employees with their specific job title, as well as the text for the “company description’ section when describing their employment with your company. 

“When an employee is using the company name, they are acting as a representative of the company and therefore employers should be able to specify how they want that perceived” says Molly. 

Other Considerations When Photographing Employees

Many employers require photo identification for security purposes, company directory purposes, or other administrative purposes such as accounts, facility access, and so on. Jake says that staff ID photos should be used for internal identification and communication purposes only. These administrative photos are drastically different from pictures taken at social gatherings, company events, holiday parties and their usage is drastically different as well. Requiring your employees to have a headshot taken should not be problematic so long as they know how the picture is being used and where it will be posted. 

Use this time as an opportunity to foster good will with your employees. We recommend allowing employees to choose when they have their photo taken within their first few days of employment. This allows the employee to prepare accordingly. Alternatively if you are needing to take headshots of your whole staff in a short period of time, give advanced notice so they know when to look their best.  

Respecting your employees wish for privacy online is a must. You don’t need to navigate through HR conundrums alone! Contact us today to set up a consultation to find out how HR can boost your business!

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