Submission Date:
Question:
My concern is about employee privacy and image use. Since it is so easy to take a picture these days, and many employee meetings are happening over videoconference, what are the laws governing the use of employee images and materials generated by a library employer? What stops the participants in an online meeting from taking and using screenshots of attendees? I know that being a librarian often means working with the public, but when it comes to an employer using an employee's picture and other digital captures of their image, what does the law say? Can an employee attending an online meeting be compelled to turn on their camera?
Answer:
This is one of those questions that a thoughtful attorney, wishing to be thorough, could write a book about. However, "Ask the Lawyer" is not a book, so we'll see what I can do in about one thousand words!
To give some useful answers, and also stick within our word limit:
1. If a library/employer needs to convene a meeting of employees and decides it will use videoconferencing tech to do so, and then states an expectation that all participating employees will turn their cameras on during the meeting, no law in New York bars such a requirement.
2. If employees of a library/employer that requires, as a matter of policy, that participants in a video conference must turn their cameras on, decide to demand via a collective bargaining agreement, or through policy, that keeping a camera "off" should be an option for an employee, that could become a negotiated or policy-based term of employment. But an employer could say "no" when this is asked/demanded (and then take the hit on employee morale and/or union relations).
3. If a solitary employee of an employer who requires participants in a video conference to turn their cameras on decides being on-camera is unacceptable to them, and they request an exception to the rule, that is a reasonable request--but there is no obligation on the part of the employer to honor it (and in fact, special exceptions could cause issues...more on that in a bit).
4. If an employee has a disability that prevents them from working effectively while on camera, that employee could request keeping the camera "off" as a disability accommodation, and the employer would have to consider the request per their disability accommodations policy (Based on the particular circumstances, this may or may not result in a decision to grant the requested accommodation).
5. Now, with respect to the use of pictures: if an employer uses an employee's image--taken as either a photograph, a screenshot, or through any other means--for commercial purposes without the employees' permission, that could potentially be a violation of the law. This is why employers who wish to use their employees' images in catalogs, advertising campaigns, and other publications as part of commercial operations should obtain written permission for such use.[1]
6. Library/employers who wish to be proactive about protecting employee privacy, while also acknowledging that a library's workforce does often play a public role in their community, should use thoughtfully developed policies to find the balance between public relations and employee safety and privacy. A well thought-out and routinely re-evaluated use of a "Social Networking Policy," a "Media Relations Policy," and a "Branding and Promotions Policy"[2] can achieve this balance.
7. And now, for some thoughts on how this all fits together.
[Clears throat, steps on soapbox]
There is no one right way to do any of the above-listed items, but because having a solid process that respects the privacy of employees is part of attracting, developing, and retaining a qualified and dedicated workforce--as well as promoting the operations of the library--it is important that a library/employer find the way that works for them.
On the employee side, for library employees who are concerned about their privacy, or about being compelled to turn a camera on, if at all possible, raising the issues gently with management prior to any type of crisis point is a good idea.[3] For libraries that are using name tags, or have specific policies related to employee safety/privacy, or use of cameras on site, any of those policies are good entry points for consideration of these issues.
Law aside, as a business owner, and as the participant in (now) more online meetings than I can count,[4] I have found that it is very important to set the norms for online meetings[5] so that employees know what the expectations are.
How is that done? When convening a meeting, at least until a group knows what the norms are, it is good to give a few of the ground rules. For instance, a good set of opening ground rules could be:
"Thanks everyone for gathering today. While we can't be together in person, it is good to be together for this important topic. For this meeting, cameras are optional, but we ask that if your camera is off, you use a picture of your face for ease of communication. This meeting is not being recorded, and we ask that you refrain from taking screenshots unless you ask first. If you have questions during the discussion, feel free to put them in the chat. Our note-taker today is [Person], and if you have items that you want to make sure end up in the notes, please put those in the chat as we meet. The notes for the meeting will go out by tomorrow."
Another example, very different but just as enforceable, would be:
Thanks everyone for gathering today. While we can't be together in person, it is good to be together for this important topic. For this meeting, we do ask that you keep your camera on, so we are all using the same modes of communication. Also, so we have a good record of the information we'll review and the decisions we'll make, this meeting is being recorded. As a courtesy, please do not take a screenshot unless you ask first. If you need to make a comment, please raise your hand, and I as moderator will get you in the queue. We don't have a note-taker for today, so please make your own notes for any points to follow-up, or ask [Person] for the recording. As with all our meetings, the recording will be considered confidential and not for release to anyone who was not in attendance."
...and the combinations could go on.
By being thoughtful about the nuances of privacy and the norms for meetings, a library/employer can both set the tone for a graceful meeting, and also position themselves to proactively address any employee concerns about the chosen norm for meetings overall. This is particularly important if an employer is insisting that cameras be on at all times; while there may be compelling reasons for this type of rule, if a library/employer is relying on employees who are working from home, there may also be compelling reasons to give employees the option of attending with their camera "off"; a well thought-out and routinely expressed set of norms will help with compliance, will make sure exceptions to "camera-on" rules are not perceived by others as unfair, and will create space for feedback in case employees want to request that the rule or norm be changed.
Thank you very much to the member for a compelling set of questions that are very much of the times. As with all "Recently Asked Questions" posted on "Ask the Lawyer, we invite feedback on this one (sent to [email protected] or through the "Ask the Lawyer" submission page). This is an evolving topic, and I am sure many library council members out there have thoughts on this!
[1] For more on image rights, see the “Ask the Lawyer” here: https://wnylrc.org/raq/posting-patron-images-facebook-when-image-release-required.
[2] There is no one name for this type of policy...some libraries call it "marketing," while others resist that label as too commercial-sounding. If it didn't sound so cute, I'd say call it the "Who We Are and What We're Doing" policy, since that is really what it's for.
[3] I appreciate that not all employees are in situations where they feel empowered to raise this type of concern--gently, or at all.
[4] In 2022, who can't claim this breadth of experience? That said, because of my work, I have met with now hundreds of clients via telecon, so have seen a wide array of how business conduct online meetings.
[5] This is important for in-person meetings, too...but the norms may be a bit different.
