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- 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 --
-
-