DEAR CARRIE: I am an at-will professional employee. Several years ago, our employer asked employees for permission to use their pictures in company promotional materials, on the website, etc. It was voluntary, and I opted out. Recently, the company sent out another message regarding the use of pictures for a company directory. This time it was a directive. We must agree to have our photographs used, allegedly for security reasons. I would prefer that my photo not appear in this directory. At any rate, the company has a picture of me because I have a photo ID that I use to get into the building. Do I have any rights to the privacy of my image? I will comply if I have no alternative, as I like my job and don’t want to lose it. — Unwanted Exposure
DEAR UNWANTED: Your question is similar to a recent one from a woman who complained that her former company continued to use her résumé in materials for project bids, well after she had left. Because the company used her personal information without her permission, the unauthorized use is considered a violation of her right to privacy and her right to publicity. In other words, the company had no right to use her résumé for commercial purposes without her consent, said employment attorney Alan Sklover of Sklover & Co. in Manhattan.
He notes that while your situation shares some similarities with the previous reader as far as the commercial use of your personal information or image is concerned, your status as a current employee entails something different when it comes to noncommercial uses.
Sklover, who represents employees, noted that even though you are an employee, you were asked for permission to use your photo for promotional purposes.
“Promotional materials, such as brochures, websites and videos, are the very essence of commercial use,” Sklover said. “They are going to be used to promote, that is, to attract more customers or clients. Because they were being used for commercial purposes, voluntary consent was requested, not required, meaning: ‘We won’t fire you if you say ‘No.’ ” he said.
The use of your photo for the company directory, however, is a different matter.
“This time, the employer has requested to use the employee’s photograph for its own internal use, that is, for the purposes of improved internal security, which is not commercial in nature,” he said. “Every employer has a duty to provide all of the security it can for its employees, and every employee has a right to good security at work. An employer providing good security and a safe workplace is not a commercial use but a noncommercial use, and one that we all appreciate.”
The upshot is this:
“As a noncommercial use, the employer can require your photo, for your own safety and the safety of others,” Sklover said. “Indeed, they can even terminate an employee who does not cooperate on this basis, which would be considered insubordination with an entirely reasonable — and laudable — request like this one.”
And he added, “Good, thoughtful and effective workplace safety and security is in everyone’s interests. “Viewed in this context, and in her own interests, I bet the reader will be much more willing to provide her photo.”