PRINTER'S NO. 2833
No. 2116 Session of 2003
INTRODUCED BY VEON, DeWEESE, BELFANTI, MANN, PISTELLA, BELARDI,
FABRIZIO, SHANER, KELLER, LEVDANSKY, BEBKO-JONES, LEACH,
DONATUCCI, WALKO, KIRKLAND, SURRA, JAMES, CURRY, STABACK,
DALEY, YOUNGBLOOD, FREEMAN, HORSEY, DeLUCA, GOODMAN AND
SCRIMENTI, OCTOBER 21, 2003
REFERRED TO COMMITTEE ON LABOR RELATIONS, OCTOBER 21, 2003
AN ACT
1 Requiring employers engaging in monitoring to give employees
2 affected prior notification; providing for access to data;
3 providing for dispute over data; providing for privacy
4 protection; and providing for penalties.
5 The General Assembly of the Commonwealth of Pennsylvania
6 hereby enacts as follows:
7 Section 1. Short title.
8 This act shall be known and may be cited as the Workplace
9 Privacy Act.
10 Section 2. Definitions.
11 The following words and phrases when used in this act shall
12 have the meanings given to them in this section unless the
13 context clearly indicates otherwise:
14 "Data." Any information concerning an employee which because
15 of name, identifying number, mark or description can be readily
16 associated with a particular individual. The term includes
17 information contained in printouts, forms, or written analyses
1 or evaluations.
2 "Department." The Department of Labor and Industry of the
3 Commonwealth.
4 "Electronic monitoring." The collection, storage, analysis
5 and reporting of information concerning an employee's activities
6 by means of a computer, electronic observation and supervision,
7 remote telephone surveillance, telephone call accounting or
8 other form of visual, auditory or computer-based surveillance
9 conducted by any transfer of signs, signals, writing images,
10 sounds, data or intelligence of any nature transmitted in whole
11 or in part by a wire, radio, electromagnetic, photoelectronic or
12 photo-optical system.
13 "Employee." A current or former employee of an employer.
14 "Employer." A person who employs employees. The term
15 includes any individual, corporation, partnership, labor
16 organization, unincorporated association, or any other legal
17 business, the Commonwealth, its political subdivisions and any
18 boards, commissions, schools, institutions or authorities
19 created by the State or its political subdivisions, and any
20 agent of the employer.
21 "Prospective employee." A person who has applied for a
22 position of employment with an employer.
23 Section 3. Notice.
24 (a) Employee.--An employer who engages in electronic
25 monitoring shall provide an affected employee with prior written
26 notice describing the following:
27 (1) The forms of electronic monitoring to be used.
28 (2) The data to be collected.
29 (3) The frequency of each form of electronic monitoring
30 which will occur.
20030H2116B2833 - 2 -
1 (4) The use of the data collected.
2 (5) Existing production standards and work performance
3 expectation.
4 (6) Methods for determining production standards and
5 work performance expectations based on electronic monitoring.
6 (b) Prospective employee.--
7 (1) An employer shall notify a prospective employee of
8 existing forms of electronic monitoring which may directly
9 affect the prospective employee if hired.
10 (2) An employer, upon request by a prospective employee,
11 shall provide the prospective employee with the information
12 described in subsection (a).
13 (c) Exception.--Notwithstanding subsection (a), an employer
14 who is engaged in electronic monitoring on the effective date of
15 this act shall have 90 days after such date to provide each
16 affected employee with the required written notice.
17 Section 4. Engagement in electronic monitoring.
18 An employer who engages in electronic monitoring shall
19 provide the affected employee or affected customer with a signal
20 light, beeping tone, verbal notification, or other form of
21 visual or aural notice, at periodic intervals, that indicates
22 that electronic monitoring is taking place.
23 Section 5. Access to data.
24 An employer shall permit an employee or the employee's
25 authorized agent to have access to all data obtained by
26 electronic monitoring of the employee's work.
27 Section 6. Dispute over data.
28 (a) Removal or correction.--An employer and employee may
29 mutually agree upon a removal or correction of data obtained by
30 electronic monitoring which the affected employee believes is
20030H2116B2833 - 3 -
1 inaccurate or misleading.
2 (b) Employee's options.--If an agreement cannot be reached
3 in accordance with subsection (a), an employee may:
4 (1) Submit a written statement explaining the employee's
5 position regarding the disputed data. The statement shall be
6 included in any disclosure of the disputed data but shall not
7 imply or create any presumption of employer agreement with
8 its contents.
9 (2) (i) file a complaint pursuant to grievance
10 procedures established in an applicable collective
11 bargaining agreement; or
12 (ii) file a complaint with the department, which
13 shall investigate the complaint and conduct a hearing
14 pursuant to 2 Pa.C.S. (relating to administrative law and
15 procedure) to determine whether the disputed information
16 is inaccurate or misleading. If the department determines
17 that the disputed information is inaccurate or
18 misleading, the information shall be deleted.
19 Section 7. Privacy protection.
20 (a) Relevancy required.--An employer may not collect data on
21 an employee through electronic monitoring which is not relevant
22 to the employee's performance.
23 (b) Restricted areas.--An employer may not monitor employees
24 through electronic surveillance, including video surveillance,
25 in an area designated for the health and comfort of employees or
26 for safeguarding of their possessions, including rest rooms,
27 locker rooms and lounges.
28 (c) Disclosure limited.--An employer may not disclose data
29 obtained by electronic monitoring to any person or business
30 entity except to or with prior written consent of the employee
20030H2116B2833 - 4 -
1 to whom the data pertains.
2 (d) Exception.--Notwithstanding subsection (c), disclosure
3 may be made as follows:
4 (1) To officers and employees of the employer who have
5 legitimate need for the information in the performance of
6 their duties.
7 (2) To a law enforcement agency in connection with a
8 criminal investigation or prosecution.
9 (3) Pursuant to the order of a court of competent
10 jurisdiction.
11 (e) First amendment rights.--An employer may not maintain,
12 collect, use or disseminate data obtained by electronic
13 monitoring which describes how an employee exercises rights
14 guaranteed by the First Amendment of the United States
15 Constitution unless the collection and use of the data is
16 authorized by statute, authorized by the employee or is
17 pertinent to and within the scope of, an authorized law
18 enforcement activity.
19 Section 8. Use of data collected.
20 (a) Data may not be used as sole basis for evaluation.--An
21 employer may not use data obtained by electronic monitoring as
22 the exclusive basis for individual employee performance
23 evaluation or disciplinary action, unless the employee is
24 provided with an opportunity to review the data within a
25 reasonable time after the data is obtained.
26 (b) Data may not be used as sole basis for production
27 quotas.--An employer may not use data or collective data
28 obtained by electronic monitoring as the sole basis for setting
29 production quotas or work performance expectations.
30 Section 9. Enforcement provisions.
20030H2116B2833 - 5 -
1 (a) Civil penalties.--
2 (1) Subject to paragraph (2), any employer who violates
3 any provision of this act may be assessed a civil penalty of
4 not more than $10,000.
5 (2) In determining the amount of any penalty under
6 paragraph (1), the department shall take into account the
7 previous record of the person in terms of compliance with
8 this act and the gravity of the violation.
9 (3) The assessment of penalties under this subsection
10 shall be subject to the hearing and appeal procedures of 2
11 Pa.C.S. (relating to administrative law and procedure).
12 (b) Injunctive actions by the department.--The department
13 may bring an action under this section to restrain violations of
14 this act.
15 (c) Private civil actions.--
16 (1) An employer who violates this act shall be liable to
17 the employee or prospective employee affected by the
18 violation. The employer shall be liable for such legal or
19 equitable relief as may be appropriate, including employment,
20 reinstatement, promotion, and the payment of lost wages and
21 benefits.
22 (2) An action to recover the liability prescribed in
23 paragraph (1) may be maintained against the employer in the
24 appropriate court of common pleas by an employee or
25 prospective employee for or on behalf of such employee,
26 prospective employee, and for other employees or prospective
27 employees similarly situated. No such action may be commenced
28 more than three years after knowledge of the alleged
29 violation.
30 (3) The court, in its discretion, may allow the
20030H2116B2833 - 6 -
1 prevailing party reasonable costs, including attorney fees.
2 (d) Waiver of rights prohibited.--The rights and procedures
3 provided by this act may not be waived by contract or otherwise,
4 unless such waiver is part of a written settlement agreed to and
5 signed by the parties to the pending action or complaint under
6 this act.
7 (e) Employee protection.--An employee who brings suit under
8 any provision of this act may not be retaliated against or fired
9 by the employer or an agent of the employer after judgment has
10 been rendered.
11 Section 10. Regulations.
12 The department shall promulgate rules and regulations to
13 carry out the provisions of this act.
14 Section 11. Inapplicable to monitoring conducted by law
15 enforcement agencies.
16 This act shall not apply to electronic monitoring
17 administered by law enforcement agencies as may otherwise be
18 permitted in criminal investigations.
19 Section 12. Effective date.
20 This act shall take effect immediately.
J3L43MEP/20030H2116B2833 - 7 -