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SHRM's knowledge advisors answer common HR questions.
Can an employer use employee photographs for marketing purposes, such as company brochures?
There is no federal regulation that specifically prohibits an employer
from using employee photos for business purposes, including marketing
company products and services.
However, many states restrict the use of an individual’s name, image,
voice, photo or “likeness” for commercial purposes without the person’s
prior consent. These statutes are commonly known as “right-of-publicity”
or “right-of-privacy” laws. Washington state and others address the
topic under “unfair competition” or “personality rights” statutes.
Employers should review laws in their states to ensure compliance.
Aside from any legal requirement, employers might still want to obtain
an employee’s consent prior to using his or her photo for commercial
purposes. If they don’t, workers might expect to be compensated for the
use of their image or to receive favorable treatment.
Some employers ask employees to sign a general photo consent release at
the onset of employment that allows photos to be used for ID badges or
for internal recognition on the company’s intranet. Employers should
obtain separate written consent in advance each time an employee’s photo
will be used for marketing purposes. The release should outline how the
photo will be used and any other applicable conditions. Consult a
lawyer for guidance.
Recognize that some people are uncomfortable with having their photo
taken because they perceive they will be judged or possibly
discriminated against based on their appearance.
In addition, an employee may object to photos because of sincerely held
religious beliefs. An employer may be required to provide a reasonable
accommodation unless it can show that doing so would create an undue
hardship. Consent should be voluntary, and employers should make efforts
to accommodate employees who decline to be photographed.
While some people feel that using photos of employees projects a
genuine, personal and positive image on the organization, there can be
negative consequences as well. For example, if a pictured employee is
terminated, he or she may no longer want to represent the company and
the company may no longer want to use that person’s image. Changing
marketing materials could be costly.
—Amber Clayton, SPHR-CA
Is it less risky to terminate an employee within the first 90 days of employment?
No. A 60-day or 90-day orientation period (sometimes known as an
introductory period, training period or probationary period) doesn’t
reduce the legal risks associated with termination.
Even though most new hires are employed “at will,” federal, state and local employment laws still apply.
If the employer is unable to articulate the reason for termination and
can’t provide documentation to support its decision, it might have a
difficult time fighting a claim of discrimination or retaliation.
Therefore, documenting performance or conduct issues for new hires is
just as important as documenting progressive discipline for a long-term
Employers should address concerns about performance, attendance or
behavior as early as possible in the employment relationship.
Overlooking problems may cause employees to believe their performance is
acceptable, thus making later disciplinary action seem unfair,
discriminatory or retaliatory.
In some situations, termination within the first 60 or 90 days is
necessary, but employers should not rush to a decision. Carefully
consider the legal risks. For example, suppose a manager wants to fire a
new hire for attendance issues because he or she is taking a day or two
off a month for medical appointments. Even when a new hire is not yet
eligible for paid time off or leave under the federal Family and Medical
Leave Act, the employee may be covered under the Americans with
Disabilities Act (ADA). If he or she has a disability, making a decision
to terminate employment before assessing whether a reasonable
accommodation should be provided may be an ADA violation.
Before deciding to terminate someone, it’s important to consider whether
new hires have been given the appropriate training and resources to be
successful, as well as the opportunity to correct their mistakes.
Employers shouldn’t continue to employ an individual who is unable or
unwilling to improve his or her behavior after counseling or training is
However, if the person has not been made aware of performance or conduct
concerns, the company should consider whether coaching, additional
training, a performance improvement plan or a final warning is a more
appropriate next step.
—Liz Petersen, SPHR-CA, GPHR
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