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| THE GENERAL ASSEMBLY OF PENNSYLVANIA |
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| HOUSE BILL |
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| INTRODUCED BY COHEN, BELFANTI, MANN, VULAKOVICH, FREEMAN, GEORGE, JOSEPHS, MELIO, BRIGGS, DePASQUALE, FRANKEL, GIBBONS, HARKINS, HORNAMAN, KIRKLAND, MURPHY, M. O'BRIEN, READSHAW, SIPTROTH, K. SMITH, WHEATLEY AND YOUNGBLOOD, APRIL 21, 2009 |
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| REFERRED TO COMMITTEE ON LABOR RELATIONS, APRIL 21, 2009 |
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| AN ACT |
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1 | Providing for notice to employees of electronic monitoring by |
2 | employers of network and information technology resources; |
3 | establishing a cause of action; and imposing civil penalties. |
4 | The General Assembly of the Commonwealth of Pennsylvania |
5 | hereby enacts as follows: |
6 | Section 1. Short title. |
7 | This act shall be known and may be cited as the Workplace |
8 | Electronic Message Monitoring Act. |
9 | Section 2. Legislative findings and intent. |
10 | (a) Findings.--The General Assembly hereby finds and takes |
11 | notice that workplace electronic communication, specifically e- |
12 | mail messaging, has become a pervasive and standard form of |
13 | communication for most individuals, rivaling the use of |
14 | telephonic communications. Because of such widespread and |
15 | routine usage, e-mail messaging has become an accepted means |
16 | through which individuals communicate business-related or |
17 | nonbusiness-related information, including private or personal |
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1 | information. As a result, the General Assembly recognizes that, |
2 | unless explicitly notified to the contrary, users of e-mail have |
3 | a reasonable and recognized expectation of privacy to their |
4 | electronic communication. Furthermore, the General Assembly also |
5 | recognizes that employers have a legitimate interest in ensuring |
6 | that their e-mail messaging systems are not being used in a |
7 | manner that is prohibited by law, constitutes discriminatory |
8 | conduct toward others or exposes the employer to civil |
9 | liability. |
10 | (b) Intent.--It is the intent of the General Assembly to |
11 | balance the expectations of privacy of employees who may use |
12 | workplace e-mail messaging systems to communicate personal or |
13 | private information with the legitimate needs of employers to |
14 | prevent misuse or abuse of their e-mail systems. To this end, |
15 | the General Assembly hereby enacts this act in an effort to |
16 | preserve the functionality of e-mail as a business tool for |
17 | increasing productivity and efficiency in the workplace and to |
18 | restore a higher sense of dignity to this growing form of |
19 | electronic communication by prohibiting employer monitoring of |
20 | e-mail communications unless employees have been clearly |
21 | notified of the possibility of such monitoring. |
22 | Section 3. Definitions. |
23 | The following words and phrases when used in this act shall |
24 | have the meanings given to them in this section unless the |
25 | context clearly indicates otherwise: |
26 | "Electronic communication." A transfer of signs, signals, |
27 | writing, images, sounds, data or intelligence of any nature |
28 | transmitted in whole or in part by a wire, radio, |
29 | electromagnetic, photoelectronic or photo-optical system. |
30 | "Electronic monitoring." The use of an electronic device to |
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1 | record, check, track, review or otherwise inspect e-mail or |
2 | electronic communication. |
3 | "E-mail." A message or messages sent or received |
4 | electronically over a computer network, including any and all |
5 | graphics and audio information and other electronic file |
6 | attachments. |
7 | "Employee." A person who performs services for an employer, |
8 | whether as an employee or otherwise, and has authorized access |
9 | to the employer's e-mail and other electronic communications |
10 | equipment and computer system, including computer equipment, |
11 | network, Internet access, databases, electronic files, software, |
12 | telephone, radio or other types of information technology. |
13 | "Employer." A person, firm or corporation, including the |
14 | Commonwealth and any political subdivision of the Commonwealth, |
15 | that has employees. |
16 | Section 4. Notice of monitoring. |
17 | (a) General rule.--Except as provided in section 5, an |
18 | employer who intentionally reads, listens to or otherwise |
19 | engages in electronic monitoring, or otherwise monitors the |
20 | computer usage of an employee, without first having provided the |
21 | employee with notice meeting the requirements of subsection (b), |
22 | shall be liable to the employee for relief as provided under |
23 | section 9. |
24 | (b) Form of notice.--A notice under this section shall be in |
25 | a clear and conspicuous written form distributed to and |
26 | acknowledged by all employees, written or electronically, in a |
27 | manner reasonably calculated to provide actual notice. The form |
28 | of notice required by this section may but need not be in the |
29 | following form: |
30 | (Name of Company) |
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1 | (Address of Company) |
2 | (Telephone Number of Company) |
3 | This notice is to inform you of (name of company)'s |
4 | (hereinafter the "company") intention to inspect, review or |
5 | retain electronic communications created, sent, displayed, |
6 | received or stored on or over its information technology, |
7 | network, Internet access, computer equipment, databases, |
8 | files and software (collectively the "computer system"). |
9 | Company may monitor at any time, without further notice to |
10 | you, electronic communications created, sent, displayed, |
11 | received or stored on or over its computer system, whether |
12 | related to the company's business or not. EMPLOYEES SHOULD |
13 | NOT HAVE AN EXPECTATION OF PRIVACY IN ANYTHING THEY CREATE, |
14 | STORE, SEND, RECEIVE OR DISPLAY ON OR OVER THE COMPANY'S |
15 | COMPUTER SYSTEM. The company may use human or automated means |
16 | to monitor the contents or use of its computer system. |
17 | Employee Acknowledgment |
18 | I have received, read and understand the foregoing notice |
19 | regarding monitoring electronic communications. |
20 | Employee's Signature:_________________________ |
21 | (c) Prior notification.--Where an employer has previously |
22 | provided notice of electronic monitoring prior to the effective |
23 | date of this act, in a manner substantially similar to the form |
24 | provided for in subsection (b), the employer need not provide |
25 | notice of monitoring again. |
26 | (d) Additional notice.--This section sets forth minimum |
27 | notice requirements for employers. Nothing in this section shall |
28 | preclude an employer from expressly providing employees |
29 | additional notice of the employer's monitoring activities. |
30 | Section 5. Exception to notice requirement. |
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1 | An employer may conduct electronic monitoring without the |
2 | notice required under section 4 if the employer has reasonable |
3 | grounds to believe that a particular employee of the employer is |
4 | engaged in conduct that: |
5 | (1) violates the legal rights of the employer or another |
6 | person; |
7 | (2) involves significant harm to the employer or such |
8 | other person; and |
9 | (3) the electronic monitoring is reasonably calculated |
10 | to lead to evidence of such conduct. |
11 | Section 6. Construction. |
12 | Notice set forth in accordance with section 4 shall not be |
13 | construed to impose an obligation upon an employer to actually |
14 | monitor e-mail or electronic communications or to constitute the |
15 | employer's constructive notice of any activity occurring on or |
16 | over its computer network and other computer resources or |
17 | information technology. |
18 | Section 7. Investigation. |
19 | Nothing in this act shall be construed to prohibit an |
20 | employer who chooses not to monitor his employees from |
21 | investigating an employee's conduct as long as the employer is |
22 | in compliance with section 5. |
23 | Section 8. Verification. |
24 | Upon distributing notice to employees in accordance with |
25 | section 4, the employer shall require every affected employee to |
26 | sign or electronically verify that the employee has received, |
27 | read and understood the notice. If an affected employee to whom |
28 | notice has been provided declines to sign or electronically |
29 | verify that the employee has received, read and understood the |
30 | notice, the employer may comply with the requirements of this |
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1 | section by having the person who provided the notice to the |
2 | affected employee sign and retain a statement to that effect and |
3 | provide a copy of that statement to the affected employee. |
4 | Section 9. Civil action. |
5 | (a) Cause of action.--An employee whose e-mail communication |
6 | has been monitored in violation of this section may bring a |
7 | civil action to recover from the employer or entity which |
8 | engaged in the violation: |
9 | (1) Such preliminary and other equitable or declaratory |
10 | relief as may be appropriate and attorney fees and other |
11 | litigation costs reasonably incurred. |
12 | (2) The actual damages suffered by the plaintiff and any |
13 | profits made by the violator as a result of the violation as |
14 | well as punitive damages, but in no case less than the sum of |
15 | $2,000. |
16 | (b) Limitation.--A civil action under this section may not |
17 | be commenced later than one year after the date upon which the |
18 | claimant first discovered or had a reasonable opportunity to |
19 | discover the violation. |
20 | Section 10. Applicability. |
21 | The provisions of this act shall not apply to a criminal |
22 | investigation. Any information obtained in the course of a |
23 | criminal investigation through the use of electronic monitoring |
24 | may be used in a disciplinary proceeding against an employee. |
25 | Section 11. Effective date. |
26 | This act shall take effect in 90 days. |
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