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Reality based entertainment such as Survivor and Big Brother, where every move of a group is recorded in painstaking detail 24 by 7, has truly captured the imagination of not only America, but the world. The startling truth is that the average American need not look any further than his/her own work telephone or computer if they are enamored of constant monitoring or surveillance. According to the American Management Association’s (AMA) annual Electronic Monitoring and Surveillance Survey, released in April of 2000, almost three-quarters of all major firms (practically double the 1997 survey results) in the United States are recording and/or reviewing the e-mails, telephone calls and computer files of their employees. (Please go to the following AMA press releases for further details on the current Annual Survey – http://www.amanet.org/press/research/check_email.htm and http://www.amanet.org/research/specials/elecmont.htm.)
The Electronic Communications Privacy Act (ECPA)
In 1986 Congress passed the Electronic Communications Privacy Act (ECPA), P.L. 99-508, which addresses the issue of employee monitoring in the private and public sector. One is liable under the ECPA if they “intentionally intercept, use or disclose any wire, oral or electronic communications.” However, the ECPA provides for significant exceptions to the above iteration. Where the employee supplies written or verbal consent upon being informed of the monitoring policy, we have the “consent exception.” The ‘business use’ exception allows for the employer to monitor the employee “in the normal course of their employment.” There is also a “provider” exception, which grants the provider of the “wire or electronic communication” carte blanche to access stored communications. The litany of exceptions in the ECPA leaves the question of employee privacy in the workplace open to broad interpretation.
In July of 2000, an unlikely team of Members introduced companion measures concerning employee monitoring in the workplace. The Notice of Electronic Monitoring Act was introduced by Rep. Bob Barr (R-GA) and Charles Canady (R-FL) in the House and Sen. Charles Schumer (D-NY) in the Senate. Although these Members rarely agree on any issue, they have joined forces to take a stand on the privacy of the American worker. As they noted in their press release, “Americans are spending more time in the workplace and companies are implementing new technologies to track electronic activities.” In an effort to protect employee privacy, this legislation clarifies the ECPA by clearly delineating the employer-employee notice requirements. (To access the text of Sen. Schumer’s press release, please go to: http://www.senate.gov/~schumer/html/schumer__canady__barr_introduc.html. For the text of Rep. Barr’s press release, please see: http://www.house.gov/barr/p_072000.html.)
The legislation (H.R. 4908 and S. 2898) requires employers to notify all new employees when they are hired as to the electronic monitoring policy of the company. his notice must be renewed annually and when there is a change in the company policy. The notification must be concise as to the type, frequency, method and use of the monitoring. Employees have the right to sue their employers for a violation and can collect damages per employee and per incident. An employer is exempted from the notice provisions if they reasonably believe that an employee is engaging in “harmful” or “illegal” conduct in the workplace. (For the full text of H.R. 4908, please go to: http://thomas.loc.gov/cgi-bin/query/z?c106:H.R.4908: and for the text of S. 2898, please go to: http://thomas.loc.gov/cgi-bin/query/z?c106:S.2898:)
State Law and Legislation
Although my survey cannot be termed exhaustive, there is one state that has an employee monitoring statute on the books – Connecticut. Enacted in 1998, Public Act 98-142, An Act Requiring Notice to Employees of Electronic Monitoring of Employers is a groundbreaking statute. It requires prior written notice to all employees being monitored, although simply posting a notice is defined as “written notice.” The Labor Commissioner can levy civil penalties, not exceeding three thousand dollars, if an employer is found to be in violation. (The text of PA 98-142 can be found at: http://www.cga.state.ct.us/ps98/act/pa/pa-0142.htm.) This past February, a bill to amend the current law was introduced. Connecticut HB 5742, An Act Concerning Employee Privacy, made fairly minor technical changes to the existing statutory language and did not become law. (For the text of HB 5742, please go to: http://www.cga.state.ct.us/2000/tob/h/2000HB-05742-R00-HB.htm.)
Another state, which has come within a hairsbreadth of enacting employee-monitoring legislation, is California. In 1999 the Governor of California vetoed SB 1016, an Act Relating to Employee Records, which would have required employers to notify all employees in hard copy or by electronic means of the company policy and to have the employees verify that they have received and understood the policy (in writing or e-mail). The Governor vetoed the bill stating that it would leave companies liable, hinder their ability to monitor employees and jeopardize their intellectual property. The bill was reintroduced as SB 1822 this past year and remains on the calendar of unfinished business. (For the Senate Bill Analysis of SB 1016, please go to: http://info.sen.ca.gov/pub/bill/sen/sb_1001-1050/sb_1016_bill_19990831_enrolled.html . For the Senate Bill analysis of SB 1822, including a discussion of the veto of SB 1016, please go to: http://info.sen.ca.gov/pub/bill/sen/sb_1801-1850/sb_1822_bill_20000612_amended_asm.pdf .)
There are several states that considered electronic monitoring legislation during the 1999-2000 legislative sessions, but none of the bills were enacted into law. All of the bills contain employer notice provisions, although the stringency of the notice and verification requirement varies widely. Civil penalties are provided for almost uniformly for violations and some of the bills apply damages as well. Please see the list below for further information on these bills.
An Act Relating to Privacy, to Private Genetic Information, to the Rights of Employees Related to Electronic Monitoring by Employers, and to Certain Consumer Information
Similar bills were introduced in both the House and Senate chambers in 2000. SB 225 can be accessed at: http://www.legis.state.ak.us/s/basp1100.dll?Txt&S=21&TEXT=SB0225A and HB 278 is at: http://www.legis.state.ak.us/PDF/21/HB0278A.PDF.
An Act Requiring Notice to Employees of Electronic Monitoring by Employers
HB 1045 is from the 1999 session and is almost identical to the current version of Connecticut PA 98-142 (see above for text.) Please go to http://www.arkleg.state.ar.us/ftproot/bills/1999/htm/hb1045.htm for the text of HB 1045.
An Act to Amend Title 19 of the Delaware Code Relating to Employment Practices
The synopsis to HB 673 of June 2000 states that the bill requires any employers who monitor any telephone calls, e-mails, or Internet access of or by employees to give notice of such monitoring activities to the employees prior to doing so or at the time of hiring. The civil penalty for a violation is one-hundred dollars. The bill was later amended to include stricter notice and verification requirements. The text of the amendment to HB 673 is located here.
An Act Concerning Employers’ Monitoring of Certain Employee Records
Kansas HB 2964 was introduced in February 2000. It contains very clear notice and subsequent verification requirements, to the point of delineating the procedure for when notice is attempted and acknowledgement is declined by the employee. (For the text of HB 2964, please see: http://www.ink.org/public/legislative/bills.cgi?billNum=2964&year=2000&doc=bill .)
In the 1999 legislative session, two House bills were introduced concerning monitoring. HB 2657, An Act to Prevent Potential Abuses of Electronic Monitoring in the Workplace and HB 4483, An Act Relative to a Consumer’s Right to Privacy. HB 4483 is similar to Connecticut P.A. 98-142. The notice provisions of HB 2657 echo the language of the legislation introduced by Rep. Barr and Sen. Schumer. (A synopsis of HB 2657 can be found at: http://www.state.ma.us/legis/history/h02657.htm and the synopsis of HB 4483 is at: http://www.state.ma.us/legis/history/h04483.htm .)
Three bills on monitoring were introduced in the 1999 Minnesota legislative session, two of which were companion measures. SF 1902 and HF 1670, both entitled, A Bill for an Act Relating to Employment: Regulating Electronic Monitoring of Employees; Providing Criminal Penalties contain the usual notice provisions, but have the additional requirement that the “employer must provide the affected employee with a signal light, beeping tone, or some other warning when conducting a monitoring session.” (The text of SF 1902 can be accessed at: http://www.revisor.leg.state.mn.us/cgi-bin/bldbill.pl?bill=S1902.0&session=ls81 and the text of HF 1670 is at: http://www.revisor.leg.state.mn.us/cgi-bin/bldbill.pl?bill=H1670.0&session=ls81 .) HF 3036, A Bill for an Act Relating to Employment; Requiring Notice Before Employers May Engage in Electronic Monitoring of Employees or Use Such Monitoring as the Basis of an Employment Decision, contains notice provisions similar to the federal bills and includes a caveat against using information obtained through monitoring for disciplinary purposes unless proper notice was given. (The text of HF 3036 can be found at: http://www.revisor.leg.state.mn.us/cgi-bin/bldbill.pl?bill=H3036.0&session=ls81 .)
For those who wish to learn more about the issue of electronic monitoring in the workplace generally, the American Civil Liberties Union (ACLU) has a Workplace Rights Page and Legislative Briefing Kit which are highly informative. For legislators becoming involved in this issue, I would recommend the Model Electronic Privacy Act included in the briefing. (For the ACLU page on Workplace Rights, please got to: http://www.aclu.org/library/pbr2.html and for the Briefing and text of the Model Act, please go to: http://www.aclu.org/issues/worker/legkit2.html.) Another source which focuses on the legal aspects of electronic monitoring is an article entitled, Electronic Interaction in the Workplace: Monitoring, Retrieving and Storing Employee Communications in the Internet Age, by Mark S. Dichter and Michael S. Burkhardt. (For the text of their article, please go to: http://www.morganlewis.com/art61499.htm.)
Most, if not all, state legislatures have wrapped up their current legislative sessions and the 106th Congress has approximately a month left in session before the elections. Electronic monitoring and privacy in the workplace may be an issue whose time has come, but circumstances dictate that it will have to wait until next year. Until then, remember that the words “privacy” and “workplace” are not synonymous.