An employee used his mobile phone to film a co-worker lying in a pool of blood shortly after a workplace accident. This employee then posted the video on his personal social media account with no comments other than an exclamation point. What are my options?
Posted videos are a “thing” in our current society and have achieved their own adjective — “viral.” This is not surprising, given that most people have hand-held portable computer devices with an amazing capability to film events that can be shared with the world.
Videos are posted on social media for many purposes, some laudable, others offensive. The viral nature of the George Floyd video shows the power of the phone and media.
The rules surrounding when an employer can video-record employees — notice, privacy zones — are somewhat clear.
What if an employee is filming other employees? The details surrounding the filming, such as the purpose, can turn an offensive, intrusive action into a legal and worthy deed.
Before an employer acts, it must investigate the circumstances surrounding the video recording. These are the key considerations:
• Have there been worker complaints about workplace safety or unlawful activity? For example, if there have been such complaints, the filming may have been done to document an unsafe working condition or other illegal workplace conduct, such as sexual harassment.
What if the employee in the question had filed a complaint with Cal/OSHA? The filming and the resulting evidence may be legal and protected. Also, if you fire someone for filming illegal working conditions, you may be subject to a retaliation claim.
Employers should always discuss the legality of workplace restrictions on workplace recordings with legal counsel before taking any action against an employee who has filmed something at work.
• Do you have a handbook policy regarding employees filming other employees, with or without their permission? Because video recording has become so common, employers should assume that it is happening in the workplace, possibly without the consent or knowledge of those being filmed.
Employee handbooks are the best method to communicate workplace policies, and they should cover the use of video and audio recording devices at work. To the extent that employers can legally restrict workplace activities and behavior, the rules should be communicated in the employee handbook.
• Does filming an injured co-worker violate the code of conduct? A company’s code of conduct may include rules about assisting an injured employee, calling for help, or otherwise acting to mitigate the harm. Standing and recording the incident may violate one or more of these rules.
• Does failure of the employer to discipline/terminate the employee create a risk for the employer? Filming an employee under the circumstances in the question and posting a video on social media may invade protected privacy interests. Co-workers who observed the filming may be offended and feel strongly that the employer should dismiss the employee.
Make sure that your anti-harassment and anti-discrimination policies clearly state that harassment or disrespectful or unprofessional conduct of any type will not be tolerated.
For a more detailed discussion of these issues, see Social Media and Employee Discipline in the HR Library on HRCalifornia.com. Because of the risk posed by video recordings in the workplace, it is best to consult legal counsel before taking any action.
Column based on questions asked by callers on the Labor Law Helpline, a service to California Chamber of Commerce preferred and executive members. For expert explanations of labor laws and Cal/OSHA regulations, not legal counsel for specific situations, call (800) 348-2262 or submit your question at www.hrcalifornia.com.