What can I do if an employee posts a video of an injured coworker shortly after a workplace accident?

The rules surrounding when an employer can video-record employees — notice, privacy zones, etc. — are somewhat clear. But 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.

An employer must investigate the circumstances surrounding the video recording. Key considerations are:

• 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 the California Division of Occupational Safety and Health (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 an employee 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 coworker 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. Coworkers 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.

Because of the risk posed by video recordings in the workplace, it is best to consult legal counsel before taking any action.

Read more about Social Media and Employee Discipline in the HR Library.