A Picture Speaks A Thousand Words

How many times do you find yourself at a party ducking a smartphone camera held up to snap a picture of you, afraid of being forever linked to the latest viral YouTube sensation?   How often do you say to some camera-wielding person, “Ok, take the picture, but don’t tag me”?   We say that social media is everywhere.   Well, cameras are, perhaps, even more ubiquitous.   

A Minnesota court decision issued last week shows the emotional (even if slightly humorous) angle to the issue, but also reminds us of an important employment law takeaway.   In Olson v. LaBrie, Case Number A11-558 (Minn. Ct. of App. 2012), the plaintiff filed a petition seeking a “harassment restraining order” against his uncle for posting certain old family photos with accompanying text on Facebook.   It seems that plaintiff was particularly offended by pictures of him as a child “posing in front of a Christmas tree,” and what plaintiff perceived to be “hostile” language against him.

The court dismissed the petition, holding that the “evidence” did not rise to the level of harassment under Minnesota’s statutory scheme, but rather constituted only “innocuous family photographs.”   The appeals court agreed.

Employer Take Away:   What should you as an employer take away from this development?   

We can all relate to the occasional embarrassment, if not sudden outrage, of seeing our own image posted and tagged for the world to see.  Forever.  On the plate of employers these days is also the recognition that smartphones are being used by employees at the workplace and at company-sponsored events.   And there is that fine social media line again.

On the one hand, governmental agencies like the NLRB permit employees to capture certain activities at the workplace in certain circumstances.  On the other hand, your company must take great care to not violate the rights of those depicted in unauthorized pictures.   For example, the company may become aware of stalking or violence- or harassment-related behavior arising from the posting of unauthorized pictures on a social networking site.  In addition, laws exist that address photos of workers used for commercial purposes, images of children, and the use of copyrighted images.   As we have discussed in prior posts, today’s social media world requires your company to understand these realities, and address them properly in your policies and practices.

About The Author

Michael C. Schmidt is the vice chair of the firm’s Labor & Employment Department, and the office managing partner, vice chair, of the New York Midtown office, where he is resident. For more than two decades, Mike has concentrated his practice on representing companies and management in all facets of employment law, such as: (i) defense in litigation involving wage and hour (overtime and unpaid compensation), discrimination, harassment, retaliation and whistle-blowing, non-competes and trade secrets, and disability and other leave-related issues; (ii) day-to-day counseling and in-house training on issues from hiring to firing, and other questions unique to his client’s industries and business; and (iii) drafting and reviewing employment agreements, termination and severance agreements, confidentiality and non-competes, and employment policies and manuals.

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About Social Media Employment Law Blog
Social Media Employment Law Blog is devoted to the interplay between social media and employment law, an extremely topical and significant area of law for employers in this new technology era. Published and edited by Michael Schmidt, Vice Chair of the Labor & Employment Department, Mike concentrates in representing management in all facets of employment law and has been frequently quoted on employment law topics, and is regularly interviewed by trade publications and national journals for his opinions on legal trends.
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