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, 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

(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

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.

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 individual 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.

(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

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 –