102d CONGRESS 1st SESSION S. 516 To prevent potential abuses of electronic monitoring in the workplace. ______________________________ IN THE SENATE OF THE UNITED STATES February 27 (Legislative day, February 6) 1991 Mr. Simon introduced the following bill; which was read twice and referred to the Committee on Labor and Human Resources ______________________________ A BILL To prevent potential abuses of electronic monitoring in the workplace _Be it enacted by the Senate and House of Representatives of the United States of American assembled,_ SECTION 1. SHORT TITLE. This Act may be cited as the "Privacy for Consumers and Workers Act". SEC. 2. DEFINITIONS. As used in this Act-- (1) the term "electronic monitoring" means the collection, storage, analysis, and reporting of information concerning an employee's activities by means of a computer, electronic observation and supervision, - 2 - remote telephone surveillance telephone call accounting, or other form of visual, auditory, or computer-based surveillance conducted by any transfer of sings, signals, writing, images, sounds, data, or intelligence of any nature transmitted in whole or in part by a wire, radio, electromagnetic, photoelectronic, or photo-optical system; (2) the term "employee" means any current or former employee of an employer; (3) the term "employer" means any person who employs employees, and includes any individual, corporation, partnership, labor organization, unincorporated association, or any other leal business, the Federal Government, any State (or political subdivision thereof), and any agent of the employer. (4) the term "personal data" means any information concerning an employee which, because of name, identifying number, mark, or description, can be readily associated with a particular individual, and such term includes information contained in printouts, forms, or written analyses or evaluations; (5) the term "prospective employee" means an individual who has applied for a position of employment with an employer and - 2 - (6) the term "Secretary" means the Secretary of Labor. SEC.3.NOTICE (a) IN GENERAL.--Each employer who engages in electronic monitoring shall provide each affected employee with prior written notice describing the following regarding the electronic monitoring directly affecting the employee: (1) The forms of electronic monitoring used. (2) The personal data to be collected. (3) The frequency of each form of electronic monitoring which will occur. (4) The use of personal data collected. (5) Interpretation of printouts of statistics or other records of information collected through electronic monitoring. (6) Existing production standards and work performance expectations. (7) Methods for determining production standards and work performance expectations based on electronic monitoring statistics. (b) NOTICE CONCERNING EXISTING FORMS OF ELECTRONIC MONITORING.--(1) Each employer shall notify a prospective employee at any personal interview or meeting of existing forms of electronic monitoring which may directly - 3 - affect the prospective employee if such employee is hired by the employer. (2) Each employer, upon request by a prospective employee, shall provide the prospective employee with the written notice described in subsection (a) regarding existing forms of electronic monitoring which may directly affect the prospective employee if such employee is hired by the employer. (3) Each employer who engages in electronic monitoring shall provide the affected employee with a signal light, beeping tone, verbal notification, or other form of visual or aural notice, at periodic intervals, that indicates that electronic monitoring is taking place. If the electronic monitoring is conducted on a continuous basis during each of the employee's shift, such notice need not be provided at periodic intervals. (4) An employer who engages in telephone service observation shall provide the affected customer with a signal light, beeping tone, verbal notification, or other form of visual or aural notice, at periodic intervals, indicating that the telephone service observation is taking place. (c) NOTICE TO CURRENTLY AFFECTED EMPLOYEES.--Notwithstanding subsection (a), an employer who is engaged in electronic monitoring on the effective date of this Act shall have 90 days after such date to provide each affected employee with the required written notice. - 4 - SEC.4.ACCESS TO RECORDS. Each employer shall permit an employee (or the employee's authorized agent) to have access to all personal data obtained by electronic monitoring of the employee's work. SEC.5.PRIVACY PROTECTIONS. (a) RELEVANCY REQUIRED.--An Employer shall not collect personal data on an employee through electronic monitoring which is not relevant to the employee's work performance. (b) DISCLOSURE LIMITED.--An employer shall not disclose personal data obtained by electronic monitoring to any person or busness entity except to (or with the prior written consent of) the individual employee to whom the data pertains, unless the disclosure would be-- (1) to officers and employees of the employer who have a legitimate need for information in the performance of their duties; (2) to a law enforcement agency in connection with a criminal investigation or prosecution; or (3) pursuant to the order of a court of competent jurisdiction. SEC.6.USE OF DATA COLLECTED BY ELECTRONIC MONITORING. (a) DATA MAY NOT BE USED AS A SOLE BASIS FOR EVALUATION.--An employer shall not use personal data obtained by electronic monitoring as the exclusive basis for indi- - 5 - vidual employee performance evaluation or disciplinary action, unless the employee is provided with an opportunity to review the personal data with a reasonable time after such data is obtained. (b) DATA MAY NOT BE USED AS SOLE BASIS FOR PRODUCTION QUOTAS.--An employer shall not use personal data or collective data obtained by electronic monitoring data as the sole basis for setting production quotas or work performance expectations. (c) DATA MAY NOT DISCLOSE EMPLOYEE'S EXERCISE OF CONSTITUTIONAL RIGHTS.--An employer shall not maintain, collect, use, or disseminate personal data obtained by electronic monitoring which describes how an employee exercises rights guaranteed by the First Amendment unless such use is expressly authorized by statute or by the employee to whom the data relates or unless pertinent to and within the scope of, an authorized law enforcement activity. SEC.7.ENFORCEMENT PROVISIONS.--(1) Subject to paragraph (2), any employer who violates any provision of this Act may be assessed a civil penalty of not more that $10,000. (2) In determining the amount of any penalty under paragraph (1), the Secretary shall take into account the previous record of the person in terms of compliance with this Act and the gravity of the violation. - 6 - (3) Any civil penalty assessed under this subsection shall be collected in the same manner as is required by subsections (b) through (e) of section 503 of the Migrant and Seasonal Agricultural Worker Protection Act (29 U.S.C. 1853) with respect to civil penalties assessed under subsection (a) of such section. (b) INJUNCTIVE ACTIONS BY THE SECRETARY.--The Secretary may bring an action under this section to restrain violations of this Act. The Solicitor of Labor may appear for and represent the Secretary in any litigation brought under this Act. In any action brought under this section, the district courts of the United States shall have jurisdiction, for cause shown, to issue temporary or permanent restraining orders and injunctions to require compliance with this Act, including such legal or equitable relief incident thereto as may be appropriate, including employment, reinstatement, promotion, and the payment of lost wages and benefits. (c) PRIVATE CIVIL ACTIONS.--(1) An employer who violates this Act shall be liable to the employee or prospective employee affected by such violation. Such employer shall be liable for such legal or equitable relief as may be appropriate, including employment, reinstatement, promotion, and the payment of lost wages and benefits. (2) An action to recover the liability prescribed in paragraph (1) may be maintained against the employer in any - 7 - Federal or State court of competent jurisdiction by an employee or prospective employee for or on behalf of such employee, prospective employee, and for other employees or prospective employees similarly situated. No such action may be commenced more than 3 years after the date of the alleged violation. (3) The court, in its discretion, may allow the prevailing (other than the United States) reasonable costs, including attorney's fees. (d) WAIVER OF RIGHTS PROHIBITED.--The rights and procedures provided by this Act may not be waived by contract or otherwise, unless such a waiver is part of a written settlement agreed to and signed by the parties to the pending action or complaint under this Act. SEC.8.REGULATIONS. The Secretary shall, within 6 months after the date of the enactment of this Act, issue rules and regulations to carry out the provisions of this Act. SEC.8.INAPPLICABLE TO MONITORING CONDUCTED BY LAW ENFORCEMENT AGENCIES. This At shall not apply to electronic monitoring administered by law enforcement agencies as may otherwise be permitted in criminal investigations. -- end S516 --