Bill Text: PA HB1298 | 2009-2010 | Regular Session | Introduced

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Bill Title: Providing for notice to employees of electronic monitoring by employers of network and information technology resources; establishing a cause of action; and imposing civil penalties.

Spectrum: Moderate Partisan Bill (Democrat 21-4)

Status: (Introduced - Dead) 2009-05-05 - Re-referred to JUDICIARY [HB1298 Detail]

Download: Pennsylvania-2009-HB1298-Introduced.html

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PRINTER'S NO. 1553
THE GENERAL ASSEMBLY OF PENNSYLVANIA
HOUSE BILL
No. 1298 Session of2009
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
REFERRED TO COMMITTEE ON LABOR RELATIONS, APRIL 21, 2009
AN ACT
Providing for notice to employees of electronic monitoring by
employers of network and information technology resources;
establishing a cause of action; and imposing civil penalties.
The General Assembly of the Commonwealth of Pennsylvania
hereby enacts as follows:
Section 1. Short title.
This act shall be known and may be cited as the Workplace
Electronic Message Monitoring Act.
Section 2. Legislative findings and intent.
(a) Findings.--The General Assembly hereby finds and takes
notice that workplace electronic communication, specifically e-
mail messaging, has become a pervasive and standard form of
communication for most individuals, rivaling the use of
telephonic communications. Because of such widespread and
routine usage, e-mail messaging has become an accepted means
through which individuals communicate business-related or
nonbusiness-related information, including private or personal
information. As a result, the General Assembly recognizes that,
unless explicitly notified to the contrary, users of e-mail have
a reasonable and recognized expectation of privacy to their
electronic communication. Furthermore, the General Assembly also
recognizes that employers have a legitimate interest in ensuring
that their e-mail messaging systems are not being used in a
manner that is prohibited by law, constitutes discriminatory
conduct toward others or exposes the employer to civil
liability.
(b) Intent.--It is the intent of the General Assembly to
balance the expectations of privacy of employees who may use
workplace e-mail messaging systems to communicate personal or
private information with the legitimate needs of employers to
prevent misuse or abuse of their e-mail systems. To this end,
the General Assembly hereby enacts this act in an effort to
preserve the functionality of e-mail as a business tool for
increasing productivity and efficiency in the workplace and to
restore a higher sense of dignity to this growing form of
electronic communication by prohibiting employer monitoring of
e-mail communications unless employees have been clearly
notified of the possibility of such monitoring.
Section 3. Definitions.
The following words and phrases when used in this act shall
have the meanings given to them in this section unless the
context clearly indicates otherwise:
"Electronic communication." A transfer of signs, 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.
"Electronic monitoring." The use of an electronic device to
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record, check, track, review or otherwise inspect e-mail or
electronic communication.
"E-mail." A message or messages sent or received
electronically over a computer network, including any and all
graphics and audio information and other electronic file
attachments.
"Employee." A person who performs services for an employer,
whether as an employee or otherwise, and has authorized access
to the employer's e-mail and other electronic communications
equipment and computer system, including computer equipment,
network, Internet access, databases, electronic files, software,
telephone, radio or other types of information technology.
"Employer." A person, firm or corporation, including the
Commonwealth and any political subdivision of the Commonwealth,
that has employees.
Section 4. Notice of monitoring.
(a) General rule.--Except as provided in section 5, an
employer who intentionally reads, listens to or otherwise
engages in electronic monitoring, or otherwise monitors the
computer usage of an employee, without first having provided the
employee with notice meeting the requirements of subsection (b),
shall be liable to the employee for relief as provided under
section 9.
(b) Form of notice.--A notice under this section shall be in
a clear and conspicuous written form distributed to and
acknowledged by all employees, written or electronically, in a
manner reasonably calculated to provide actual notice. The form
of notice required by this section may but need not be in the
following form:
(Name of Company)
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(Address of Company)
(Telephone Number of Company)
This notice is to inform you of (name of company)'s
(hereinafter the "company") intention to inspect, review or
retain electronic communications created, sent, displayed,
received or stored on or over its information technology,
network, Internet access, computer equipment, databases,
files and software (collectively the "computer system").
Company may monitor at any time, without further notice to
you, electronic communications created, sent, displayed,
received or stored on or over its computer system, whether
related to the company's business or not. EMPLOYEES SHOULD
NOT HAVE AN EXPECTATION OF PRIVACY IN ANYTHING THEY CREATE,
STORE, SEND, RECEIVE OR DISPLAY ON OR OVER THE COMPANY'S
COMPUTER SYSTEM. The company may use human or automated means
to monitor the contents or use of its computer system.
Employee Acknowledgment
I have received, read and understand the foregoing notice
regarding monitoring electronic communications.
Employee's Signature:_________________________
(c) Prior notification.--Where an employer has previously
provided notice of electronic monitoring prior to the effective
date of this act, in a manner substantially similar to the form
provided for in subsection (b), the employer need not provide
notice of monitoring again.
(d) Additional notice.--This section sets forth minimum
notice requirements for employers. Nothing in this section shall
preclude an employer from expressly providing employees
additional notice of the employer's monitoring activities.
Section 5. Exception to notice requirement.
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An employer may conduct electronic monitoring without the
notice required under section 4 if the employer has reasonable
grounds to believe that a particular employee of the employer is
engaged in conduct that:
(1) violates the legal rights of the employer or another
person;
(2) involves significant harm to the employer or such
other person; and
(3) the electronic monitoring is reasonably calculated
to lead to evidence of such conduct.
Section 6. Construction.
Notice set forth in accordance with section 4 shall not be
construed to impose an obligation upon an employer to actually
monitor e-mail or electronic communications or to constitute the
employer's constructive notice of any activity occurring on or
over its computer network and other computer resources or
information technology.
Section 7. Investigation.
Nothing in this act shall be construed to prohibit an
employer who chooses not to monitor his employees from
investigating an employee's conduct as long as the employer is
in compliance with section 5.
Section 8. Verification.
Upon distributing notice to employees in accordance with
section 4, the employer shall require every affected employee to
sign or electronically verify that the employee has received,
read and understood the notice. If an affected employee to whom
notice has been provided declines to sign or electronically
verify that the employee has received, read and understood the
notice, the employer may comply with the requirements of this
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section by having the person who provided the notice to the
affected employee sign and retain a statement to that effect and
provide a copy of that statement to the affected employee.
Section 9. Civil action.
(a) Cause of action.--An employee whose e-mail communication
has been monitored in violation of this section may bring a
civil action to recover from the employer or entity which
engaged in the violation:
(1) Such preliminary and other equitable or declaratory
relief as may be appropriate and attorney fees and other
litigation costs reasonably incurred.
(2) The actual damages suffered by the plaintiff and any
profits made by the violator as a result of the violation as
well as punitive damages, but in no case less than the sum of
$2,000.
(b) Limitation.--A civil action under this section may not
be commenced later than one year after the date upon which the
claimant first discovered or had a reasonable opportunity to
discover the violation.
Section 10. Applicability.
The provisions of this act shall not apply to a criminal
investigation. Any information obtained in the course of a
criminal investigation through the use of electronic monitoring
may be used in a disciplinary proceeding against an employee.
Section 11. Effective date.
This act shall take effect in 90 days.
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