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How Employers Can Keep Themselves From Being YouTubed

May 8, 2009
Related Topics: Technology and the Law, Policies and Procedures, Featured Article, Technology
The phone rings at 3 a.m., awakening the CEO of a food service company. On the line is another company executive, advising the CEO of a video that shows a few of the company’s employees doing incredibly grotesque things with the company’s food ingredients before apparently placing them in meals served to customers. The video has been posted on YouTube. Bad dream? To the dismay of Domino’s Pizza, it was not.

By now, you have probably seen or heard about the video. It spread via YouTube and Twitter in April 2009 and featured Domino’s employees—who have since been fired— preparing sandwiches for delivery while one of the employees puts cheeses up his nose and nasal mucus on the sandwiches. Unfortunately for Domino’s, these employees apparently thought it would be funny to record their nauseating antics and post them online. Within days, thanks to the power of social media, the video had been seen by more than 1 million viewers.

Domino’s has since fired the employees involved and has collaborated with authorities in North Carolina, where the individuals were employed, to have criminal charges filed against the employees for delivering “prohibited” food, as the state’s statute puts it. The employees have since asserted that the whole thing was a prank and that the food products prepared on the video were never actually served to any Domino’s customers. However, a public relations nightmare ensued and, despite Domino’s damage control, it is conceivable that the implications of the video could have a long-lasting detrimental impact on the company’s reputation.

The Domino’s incident underscores the need for employers to re-evaluate their employment rules and regulations to ensure that they have safeguards in place to help prevent a similar incident. Summarized below are a few simple measures employers can and should consider adopting.

The first and most obvious step for employers is to hire the right people, and give the wrong ones a wide berth. By using the variety of hiring tools available, from background checks to behavioral interviews to pre-employment assessments, employers can weed out the worst sorts of people. Onboarding and training are also important, and both should emphasize the organization’s values and beliefs. Orientation sessions and training should not only cover the basics of the job but should also infuse in new employees a strong notion of what it means to do the right thing at work. These sessions should stress respect for the organization, customers and fellow employees.

No hiring or training process is perfect, however, and so more specific or stringent measures may be necessary.
One such step is the adoption of a written policy that specifically prohibits employees from audio or video recording anything that occurs on the employer’s work site.

There are numerous reasons to consider such a policy, including:

Avoiding embarrassment to the employer’s business and damage to its good name and reputation.
Protecting the employer’s confidential information, including trade secrets and other proprietary interests.
Limiting liability of claims brought against the employer by other employees arising from a recording made by a co-worker that defames, embarrasses or harasses that employee.

When drafting such a policy, an employer should take into account its business needs, and should make sure those needs are specifically addressed in the policy. The type of business, the sensitivity of information available at the employer’s work site and the overall work environment should be considered. The policy should set forth the purpose of the prohibition (e.g., avoiding embarrassment, protecting confidentiality), provide examples of prohibited conduct, explain the consequences of a breach of the policy and state that failing to disclose a violation of the policy may also give rise to disciplinary action, including termination.

Once the policy is adopted, an employer should make sure that it is consistent in the application of the policy and that it does not treat policy violators differently, as the disparate application of the policy could be used to support a claim of employment discrimination.

In addition, employers should be sensitive that there may be situations that call for a possible exception to the policy. The most notable example is one in which disabled employees request authorization to record meetings as an accommodation for their disability in order to do their jobs. If employees can show that they suffer from a disability and that being able to tape record certain meetings would enable them to perform the essential functions of their positions, it is conceivable that such accommodations may be required under the Americans with Disabilities Act. ADA inquiries tend to be very fact-specific, and employers whose policies prohibit recording anything on the employer’s work site and who are asked to lift that prohibition as an accommodation for a disabled employee should confer with legal counsel on a case-by-case basis.

Another measure that an employer may adopt to avoid the embarrassment that beset Domino’s is to utilize video surveillance of its employees. By using video surveillance in critical areas of the employer’s work site, such as a restaurant’s kitchen, employers can monitor their employees’ conduct and ensure that their employees do not engage in conduct that violates employer policy, state or federal law or that is otherwise reprehensible and abhorrent.

As a general rule, surveillance by a video camera that does not record spoken words does not violate federal or state law. Although there are federal and state laws prohibiting wiretapping, these laws only preclude the recording of “wire, oral, or electronic communications” and make no mention of video-only recordings. Employers generally are not required to give employees notice that they are being recorded; however, because the primary objective of the recording is to ensure that employees do not engage in prohibited conduct at the work site, disclosure of the video recording is probably a good idea as the disclosure of the videotaping alone should curb employee misconduct.

Although employers have fairly broad power to videotape their employees in public areas, employers generally should not subject their employees to video surveillance in “private” areas, such as restrooms or lockers rooms where employees may be changing clothing. If subjected to video surveillance in these more private areas, employees may have a cause of action against their respective employers for invasion of privacy. In addition, several states, including New York and Connecticut, have enacted laws that prohibit employers from videotaping employees in a restroom, locker room or room designated by the employer for employees to change their clothes. As such, employers should confer with legal counsel to make sure that the nature of their respective video surveillance complies with applicable state law.

Employers with unionized workforces or whose employees are attempting to unionize should also use caution to ensure that they comply with the National Labor Relations Act. The NLRA prohibits employers from videotaping employees’ union activity in the absence of a business justification for the surveillance. Thus, employers should use caution not to make union activity the focus of their video surveillance.

Public employers should also be aware that their use of video surveillance may violate the Fourth Amendment guarantee against unreasonable searches and seizures, especially when used to detect criminal activity by employees, provided that the employees have a reasonable expectation of privacy. Whether there is a reasonable expectation of privacy in the government workplace and the extent of that privacy typically is determined on a case-by-case basis.

Remedial action
Even if an employer implements well-crafted hiring and training policies, prohibits recording anything on the employer’s premises and utilizes video surveillance, there may be instances where employees engage in conduct that is offensive to the employer and threatens to undermine the business with its customers and community. When that happens, employers must act swiftly to deal with the misconduct.

When an employer receives notice that its employees may have engaged in conduct that violates the employer’s policies, state or federal law or that may otherwise harm or embarrass the employer, the employer should immediately begin an investigation into the employees’ conduct. Employees with firsthand knowledge of the underlying incident should be interviewed. Pertinent documents should be reviewed and if video surveillance tapes have been used, they should be reviewed. If and when an employer determines that its employees violated policy or law or otherwise harmed the employer’s good name and reputation, the employer should take prompt disciplinary action against the employees involved.

Employers should be evenhanded in their use of discipline and should make sure that like offenses generally are met with like disciplinary action. Otherwise, the employer may be vulnerable to a claim of discrimination based on the disparate application of its rules and policies.

In addition to taking disciplinary action against its employees, employers should consider taking legal action against employees who engage in severe or gross misconduct that damages the employer’s good name or reputation. Depending on the facts and circumstances of the alleged misconduct, an employer may be able to assert such claims as tortious interference with a business relationship, breach of duty of good faith and fair dealing, breach of fiduciary duty and breach of duty of loyalty. Of course, it may be difficult for an employer who prevails in litigation against its former employees to recover money from them. But civil litigation brought by an employer against a former employee may be likely to deter current employees from engaging in serious misconduct on the employer’s premises.

Finally, in the most egregious of cases, employers should confer with counsel to determine whether its employees’ actions on the employer’s premises violated criminal law. Where there is a potential criminal law violation, employers should consider notifying the local authorities and should cooperate with those authorities in any criminal investigation concerning the employees’ conduct.

The information contained in this article is intended to provide useful information on the topic covered, but should not be construed as legal advice or a legal opinion. Also remember that state laws may differ from the federal law.

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