Is Digital Chaos Coming To Work?

DETROIT — More than 150 million Americans use cell phones today and roughly a third of those users own a camera phone. Within a few years, industry forecasts predict that nearly eight of 10 cell-phone users will be taking photos with their phones.

With that number of camera phones expected to be in use soon, it’s inevitable that many will find their way into the workplace. And having these phones in the office, store or shop could lead to liability issues and security concerns for some employers.

For instance, an employee could easily take a compromising photo of a co-worker in an area where there is a legitimate expectation of privacy such as a locker room or employer-provided shower. Or embarrassing photos taken at a company party could be distributed across the virtual globe.

On the security side, photos of sensitive documents, new products, client lists and the physical layout of a workplace all could be snapped in a matter of moments and no one in management would be the wiser.

Overall, the cell phone has the potential to add new meaning to the old term “candid camera” and many area firms should get a better understanding of what, exactly, it means for their business.

Adam Forman, a labor and employment attorney in the Detroit office of Miller, Canfield, Paddock and Stone PLC, said most employers haven’t addressed the ramifications of photo-cell phones in the workplace.

“A lot of companies are savvy to cell phone use and they have rules, of course, about those. But putting (the phone and camera) together, I don’t think a lot of companies are on top of that,” said Forman.

“The first thing a company needs to do is a very self-critical analysis. Not every company is going to have this issue. And even if it does have this issue, it needs to make sure its not creating a policy just for the sake of creating a policy,” he added.

Creating a policy for its own sake can add needless paperwork to a firm’s files. But more importantly, it can also weaken other policies that are more vital to a company.

“A policy you have that is not enforced is worse than no policy at all,” he added.

Forman said an employer needs to determine what is at risk. Obviously, a company that has a lot of intellectual property needs protection for security and competitive reasons. For others, security may not be an issue, but liability and employee morale may be concerns.

The few firms that have adopted a policy have personalized it to their specific situations. Some companies have simply banned camera cell phones from the workplace and sponsored events. Some have restricted use to certain non-sensitive areas. Others have created a policy that prohibits photo-taking of any kind, including shots with a film camera.

But Forman cautioned that banning camera cell phones might also cut off an employee’s lifeline to the outside world.

“The school bus didn’t pick up my kid and now he is sitting outside the school and I can’t know about it?” he said of a hypothetical, but potential, employee response.

Then comes an even trickier issue. An employer has to decide whether clients and visitors to the workplace should be included in the policy right along with employees.

“Frisking every contractor or customer that walks into your company may not be something that a firm may want to do,” he said.

It is probably easier, in the legal sense, for a private company with non-union workers to create a policy than it would be for one with a unionized work force. And it’s likely more painless for a privately held firm to enact one than it would be for a governmental entity.

“I wouldn’t want to say it’s the same for both, because with a public employer you’ve got the Constitution, that sticky little document with a Fourth Amendment search and seizure,” he said.

Forman spoke an age-old truth when he said employee misconduct is nothing new. But what is new, he added, is the technological format that can accompany, or even inspire, longstanding bad behavior.

“The downside is you don’t know if an individual using a camera phone is taking a picture. In the American models for the most part, there is no differentiation between someone using one to talk, check their voice mail, look at their date book or take a picture,” said Forman.