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U.S. Senate Bill 516

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.

© 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.

© 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.

© 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 --

 
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