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As the United States becomes increasingly interconnected, the problems of employers become increasingly complex. All employers strive for some control over their employees — with the exception of some dot-coms. Control ensures that work is done in a consistent, productive and safe manner. Control also safeguards a company’s proprietary and legal interests. Cell phones and camera phones are relatively new phenomena at the workplace and are increasingly becoming a source of workplace conflict and potential liability for employers and employees, sometimes for different reasons. Most companies have policies that allow them to monitor employees’ phone calls. Such policies allow employers to monitor the quality of employees’ communications with customers and the amount of time employees spend on the phone for personal reasons. Cell phones allow employees to circumvent these monitoring capabilities. Some employees seem to believe they have carte blanche to converse on the phone, as long as it’s their own phones. Employers often wonder whether they can institute policies regarding cell phones and whether they should. The answer: Employers can implement almost any policies they want, and a number of companies have banned cell phones in the workplace. The more pressing problem, however, involves camera phones. In 2004, some 257 million camera phones were shipped worldwide — representing 38 percent of all handset sales — according to Strategy Analytics, a communications consulting firm headquartered in Newton, Mass. According to a survey commissioned by Snapfish.com, of the five top-rated locations to use a camera phone, the workplace came in at No. 4. Many people and objects in the workplace never should be photographed. Before camera phones, snapping clandestine pictures at work was not a problem, because if someone had a camera in the workplace, co-workers would notice and act accordingly. But with camera phones, employees can take pictures and transmit them without anyone being the wiser, thereby creating a number of problems for employers. Often these photos contain information to which the employers aren’t even aware that the employees have access. This ignorance of exposure makes it doubly hard for employers to trace leaks of information. Here’s an example: Company A operates a call center that handles orders for a number of major catalog businesses. Some of the call center’s clients complain that they believe their customers’ private information (credit card numbers, addresses, etc.) is being improperly used. These clients believe that Company A’s call center has leaked the information. Company A’s security officers think it will be a cinch to catch the culprit — just trace the stolen customer information back to the operator who took the order. However, upon investigation, it turns out five customers’ information had been purloined, and a different operator took each customer’s order. Plus, some of these operators have had long tenures with the company and all of them, when confronted — individually and with discretion — strongly deny any wrongdoing. Company A institutes surreptitious video surveillance and discovers that another employee is standing behind some operators with his camera phone, taking pictures of the computer screens while they show company customers’ private information. Company A dismisses the thief and takes appropriate legal action, then it institutes a ban on camera phones in the workplace. Is Company A’s situation unique? Consider a high-tech company that uses proprietary information. This company would never allow cameras in certain areas in its workplace, and it needs to extend this policy to camera phones. POSSIBLE SOLUTIONS Surreptitious camera-phone users can take photos in places that have not been contemplated by most companies. Many gyms and public swimming pools post signs forbidding the use of camera phones. The problem is enforcing such a policy, since camera phones look so similar to other cellular phones. Here’s another example: Company B receives a complaint from an employee about an embarrassing photo of him that some co-employees have been circulating. Upon investigation, Company B discovers that an employee took a picture of the offended employee while he was using the bathroom. The perpetrator then e-mailed the photo to someone else in the company — violating the company’s e-mail policy, but that’s a separate article — who then e-mailed the picture to someone else in the company and so on. Company B took action against the perpetrator and amended its policy to forbid camera phones in the workplace. Employees also have reason for concern: An employer could invade the privacy of its employees by using a camera phone to perform unauthorized surveillance. Some states have laws that specifically protect employees’ privacy from this type of encroachment. With any technology problem, technology solutions are usually in the works. A loud tone or flashing light emitted when a picture is being taken from a phone could help make it more difficult for camera-phone users to photograph co-workers without their knowledge; some camera-phone manufacturers are considering implementing it. One company is introducing technology that disables the camera function of a phone within a certain area. A company could institute an outright ban on camera phones with clear consequences for violations; but, with so many camera phones in the workplace, is this practical? On the flip side, is there any other way for a company concerned about security to maintain security? Camera phones are easily hidden and hard to distinguish from regular cell phones. Each GC should consider his company’s needs and capabilities and set up a policy accordingly. Art Lambert is a partner in Kane Russell Coleman & Logan’s labor and employment section in Dallas. He is board certified in labor and employment law by the Texas Board of Legal Specialization. His e-mail address is a[email protected].

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