Smile - You're on candid camera
NLRB: Employers prohibited from banning cell phone photography by employees
In the 1960s, there was a popular show called Candid Camera. It was one of the first reality TV shows. The premise of the show was that individuals were secretly filmed after being placed in unusual, ridiculous or embarrassing situations. Before the big reveal, the host of the show would announce to those who had been targeted - “Smile, You're on Candid Camera.”
Today, the premise of this show is no longer a novelty. It is real life.
We are all being routinely filmed and photographed. From security cameras to camera phones, we are under constant electronic surveillance. Some are constantly taking “selfies” and we often don’t think twice before taking photographs of others. Further, given the ease at which photos can be uploaded to sites such as YouTube and Facebook, these photographic images can end up being seen by literally anyone in the world and conceivably can remain available for viewing indefinitely.
Having a “bad hair day” can last forever on the internet.
In March, 2015, the need for employers to be concerned about the ubiquitous presence of cell phone cameras was heightened as the result of a National Labor Relations Board (NLRB) decision on employee handbooks. In a March 18, 2015, memorandum from its General Counsel, the NLRB expanded on its decision that an employer is prohibited from implementing a policy placing a total ban on having cell phones or taking photographs in the workplace. One of the rationales given was that employees can’t be prohibited from exercising their rights to voice concerns about safety in the workplace.
Unfortunately, this NLRB Memorandum seems to ignore the clear evidence from numerous studies that found the use of cell phones can create serious safety risks, not to mention increasing the potential for serious privacy breaches and facilitating those who are inclined to engage in cyber-bullying.
Employers are now required to draft workplace policies that address these serious safety, privacy and security concerns without running afoul of the NLRB’s interpretation of unlawful employment practices.
Given that EHS managers are often directly involved in dealing with both allegations of unsafe working conditions and in addressing the risks associated with the use of cell phones (for example, texting while operating forklift trucks), the recent decisions by the NLRB is likely to create interesting legal, and ethical, challenges.
Related Resources:
The ABIH Code of Ethics contains the following provisions that would need to be considered in drafting policies on the use of cell phone use in the workplace –
I.A.1. Comply with laws, regulations, policies and ethical standards governing the professional practice of industrial hygiene and related activities.
II.C.1. Follow appropriate health and safety procedures, in the course of performing professional duties, to protect clients, employers, employees and the public from conditions where injury and damage are reasonably foreseeable.
