Blog Post: Taking Inappropriate Pictures Of Your Coworkers: What NOT to do at work.

In case there is any question, allow me to end the debate now: If you find yourself wondering: "Should I take a picture of myself naked at work and post it on my social networking page?"; "Should I expose myself at work?"; "Should I take seductive pictures of myself in my uniform?"; or "Should I make a mocumentary that suggests that my employer's product or services is faulty, gross or that my company is otherwise inept?", the answer is a resounding "No." Even if you work in the Adult Entertainment industry. Even if you work in the restaurant industry and have access to alcohol and this suddenly seems really, really funny.

Please, don't do it. I promise, you will regret it.

If your employee does any of the above, consider the ways in which you, as an employer, could have prevented it, and the legal hurdles that exist between where you are and a trouble free termination of that employee for this kind of behavior.

Legally, the employer could suffer serious harm and has many legal arguments:

• "No sexual activity" policies may prohibit workplace nudity, canoodling and other adult activity.
• Pictures posted on the Internet that associate unsavory activities with a company's brand may damage a company's image and may be prohibited with an appropriate uniform or trade secret (i.e. logo or image) policy.
• Employers may prohibit employees from using their cell phones or using cameras in the workplace but remember, a policy is only as valuable to an employer as it is universally enforced.
• Colorado is an "at-will" state and employers may fire employees for any reason or no reason at all, as long as the reason is not illegal or contrary to public policy.
• If the employer's computer was used to transmit the image, then the employee (and possibly the employer) could be subject to liability for transmitting pornography and worse, child pornography if the subject is a minor.

On the flip side (despite the fact that I fail to understand why employees believe that it is a good idea to post pictures taken in the workplace of themselves in their skivvies or less), the employee has counterpoints to these arguments as well:

• A statute in Colorado that prohibits an employer from taking adverse employment action against employees for their lawful off-duty conduct could prohibit an employer from terminating an employee for postings that occur off-duty.
• If an employer does not have clear policies prohibiting the behavior in which the employee engaged, the employee can argue that they had no notice that this behavior could subject them to termination (though the employee may run up against the "at will" employment doctrine here).
• A discrimination claim could result from an employee termination if the employee's protected status was revealed in the post or if enforcement of a written policy was inconsistent in a way that suggests discrimination.

Regardless of the legal ramifications, I remain baffled as to why an employee would make this decision. In these tough times, when new jobs are difficult to come by, why not just to go to work and, well, work? Human nature being what it is, employers would be wise to take stock of their policies and confirm that they are setting clear boundaries. Clear HR policies will make terminating employees who engage in this type of inappropriate conduct much easier, if and when the unfortunate time comes.

Laura J. Hazen is a Director at Ireland Stapleton Pryor & Pascoe, P.C. In her employment practice, Hazen provides day-to-day advice and coaching to public and private companies on various employment matters. She also has an active litigation practice where she concentrates on representing business in all aspects of complex business and employment disputes. You can contact her by email at lhazen@irelandstapleton.com or by phone at 303-623-2700.

This article is intended as a general discussion and information on the topic covered, and is not to be construed as rendering legal advice. If legal advice is needed, you should consult an attorney. This article may not be reprinted or reproduced in any manner without prior written permission of the author.