Answer: It depends. The issue at hand is an employee’s right to privacy. Generally, employees have a right to privacy in regard to their own image, voice, identity, etc., even if photos are taken at the workplace during working hours. Although federal law does not specifically prohibit an employer from using photos of employees for marketing, there are many states that do. State laws generally restrict the use of an individual’s name, image, voice, photo, or likeness for commercial purposes without the individual’s prior consent.
A best practice, regardless of the state in which your business is located, is to obtain an employee’s signed consent prior to using any photo or likeness in your social media (or marketing pieces, or in any other way). Consider having employees sign (or elect to not sign and thereby not grant consent) a blanket authorization permitting the company to use photos in marketing material including social media, company websites, and other graphic media during their tenure with the company and beyond. Provide employees the opportunity to elect what, if any, name may be provided in a public release (first only or first initial, last name, etc.) Include this document in your new hire paperwork. File the forms that do not grant consent separately from the forms that do, and always double check to ensure an employee’s privacy is not being violated prior to posting any content.
It is important to have a formal process to best manage employee permissions to protect both your company and your employees’ privacy.
