Ask HR: Can Employers Use Workers’ Social Media Photos?

SHRM President and Chief Executive Officer Johnny C. Taylor, Jr., SHRM-SCP, answers HR questions each week for USA Today.

Do you have an HR or work-related question you’d like him to answer? Submit it here.

My employer has utilized some of my Instagram photos on their social media and website to promote their business. I was never notified or asked for permission. Are they allowed to use my images without my permission and compensation? —Marvin

Johnny C. Taylor, Jr., SHRM-SCP: Your employer may be able to use the images found on your social media platforms. In the age of Facebook, Instagram and X (formerly Twitter), it’s a common practice for individuals and organizations to repost others’ photographs and images. Unfortunately, laws have not kept up with our social media era and the ability to share, remix or modify online content.

No federal law prohibits an employer from using an employee’s photo for business purposes. However, many states have statutes commonly known as “right-of-publicity” or “right-of-privacy” laws. In some states, they may be addressed as “unfair competition” or “personality rights.” These state laws prevent using an individual’s name, image, voice, photo or “likeness” for commercial purposes without prior consent from the individual. I recommend you review your state laws to see if the use of your social media photos falls under its statutes. 

Social media platforms are not considered public domain, and the use of your photos could also be limited by copyright laws or the platform’s terms and conditions. Even under a platform’s terms and conditions, it likely cannot stop your employer from using or reposting your photos. Copyright laws protect the photographer and will likely not apply to photos you appear in unless they are selfies.

Legal remedies aren’t always the most prudent or practical solution to disputes between two parties—in this case, you and your employer. Indeed, if you have a problem with your employer using your photos, you can always let them know. They should be willing to respond to a respectful and reasonable request. If you are concerned that it may be a thorny or contentious issue, you should probably start by speaking with your HR team. I hope you find an amicable agreement with your employer to protect your privacy.

I was let go from my last job because I could not see well enough at night to drive safely. My job was from 8 a.m. to 4:40 p.m. most days. Everyone in my department was expected to be available to work at night if called upon. I informed the company during my interview that I could not see to drive at night. They could not find any fault with my work, so they used my inability to drive at night as cause for my termination. Is this a case of discrimination? —Powell

Johnny C. Taylor, Jr., SHRM-SCP: Losing a job is never easy, and it can be incredibly disheartening when you feel as though you were performing well and the termination was unjustified. To answer your question, it could be a case of discrimination, but it will depend on the facts and circumstances.

Under the Americans with Disabilities Act (ADA), employers with 15 or more employees must engage candidates and employees in an interactive process to determine if they are “qualified individuals,” meaning “an individual who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires.”  This means that if driving at night was an essential function of your job, you may not be eligible for an accommodation, and they could terminate you. 

Suppose your former employer is subject to ADA regulations. In this case, they should have used the information you provided about driving at night as a catalyst for going through the interactive process to identify if you were eligible for a reasonable accommodation. For example, if night driving occurs just three or four times per year, maybe a reasonable accommodation would be for your company to hail you an Uber or Lyft on those rare occasions when they need you to work until dark. 

The process of determining whether a reasonable accommodation exists would likely include obtaining medical documentation from you or your physician. There are some cases when a specific accommodation may not be suitable due to cost or the impact on the workforce, but your company (not you) bears the responsibility of proving an accommodation is a burden.  

You may want to contact your HR department for additional information and to see if the ADA applies to your previous employer. If you feel your employer missed steps, consider speaking to legal counsel or your local Department of Labor for additional insight.