BILL NUMBER: SB 1841 ENROLLED
BILL TEXT
PASSED THE SENATE AUGUST 23, 2004
PASSED THE ASSEMBLY AUGUST 17, 2004
AMENDED IN ASSEMBLY AUGUST 4, 2004
AMENDED IN ASSEMBLY JUNE 23, 2004
AMENDED IN ASSEMBLY JUNE 8, 2004
AMENDED IN SENATE MAY 24, 2004
AMENDED IN SENATE APRIL 19, 2004
INTRODUCED BY Senator Bowen
FEBRUARY 20, 2004
An act to add Section 436 to the Labor Code, relating to
electronic monitoring of employees.
LEGISLATIVE COUNSEL'S DIGEST
SB 1841, Bowen. Electronic monitoring of employees.
Existing law prohibits an employer from recording an employee in
certain areas of the workplace without a court order. Existing law
makes a violation of the prohibition on recording employees a
misdemeanor.
This bill would prohibit employers from engaging in electronic
monitoring, as defined, of employees, as defined, without first
providing notice to the employees, except in certain specified
circumstances.
Because violations of these provisions would constitute a
misdemeanor, this bill would impose a state-mandated local program.
The California Constitution requires the state to reimburse local
agencies and school districts for certain costs mandated by the
state. Statutory provisions establish procedures for making that
reimbursement.
This bill would provide that no reimbursement is required by this
act for a specified reason.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 436 is added to the Labor Code, to read:
436. (a) For purposes of this section:
(1) "Electronic monitoring" means the collection of individually
identifiable information concerning employee activities or
communications through the use of an electronic device including, but
not limited to, a computer, computer software or other computer
program, telephone, wire, radio, camera, or electromagnetic,
photo-electronic, or photo-optical system.
(2) "Employee" includes, but is not limited to, an individual
employed by any corporation, sole proprietorship, partnership, or any
other business or entity or by the state or any subdivision thereof,
any county, city, city and county, including any charter city or
county, and any school district, community college district,
municipal or public corporation, political subdivision, or the
University of California.
(b) (1) Except as provided under subdivision (d), an employer may
not intentionally engage in electronic monitoring of an employee
without first having provided the employee with notice pursuant to
subdivision (c).
(2) Before implementing a material change in an electronic
monitoring practice, an employer shall provide notice pursuant to
subdivision (c) to all employees who will be subject to electronic
monitoring as a result of the change in practice.
(c) (1) Notice meeting the requirements of this subdivision
constitutes clear and conspicuous notice to each employee if given to
each employee either electronically or in writing, in a manner
reasonably calculated to provide actual notice, if the notice
describes:
(A) The form of communication or other activity that will be
monitored.
(B) The kinds of information that will be obtained through the
monitoring, including whether activities or communications or
computer usage not related to the employer's business are likely to
be monitored.
(2) Notice by placing signs in the workplace by itself does not
constitute clear and conspicuous notice pursuant to this section.
(d) Notwithstanding this section and except for the provisions of
Section 435 of this code and Section 653n of the Penal Code, an
employer may conduct electronic monitoring without notice to an
employee if the employer has reasonable grounds to believe that both
of the following are true:
(1) A particular employee is engaged in unlawful conduct.
(2) Electronic monitoring will produce evidence of the employee's
unlawful conduct and will be conducted in accordance with other
applicable state and federal laws.
(e) The rights set forth in this section may not be waived by
contract or otherwise, unless the waiver is part of a written
settlement to a pending action or complaint, provided, however, that
the notice required by subdivision (b) may be set forth in a contract
if the notice otherwise complies with subdivision (c).
(f) The rights of employees under this section are cumulative to
and shall not diminish any other rights of employees under any other
federal, state, local or other constitutional provision, statute,
ordinance, rule, regulation, order, or other authority. Nothing in
this section may be construed to preempt, modify, or amend any county
or local law, ordinance, regulation, or collective bargaining
agreement providing greater protection to employees.
(g) An employer who provides notice to employees of the monitoring
or recording of telephone conversations pursuant to the California
Public Utilities Commission's General Order 107-B is deemed to be in
compliance with the notice requirements set forth in this section
with regard to the monitoring or recording of employee telephone
conversations.
SEC. 2. No reimbursement is required by this act pursuant to
Section 6 of Article XIII B of the California Constitution because
the only costs that may be incurred by a local agency or school
district will be incurred because this act creates a new crime or
infraction, eliminates a crime or infraction, or changes the penalty
for a crime or infraction, within the meaning of Section 17556 of the
Government Code, or changes the definition of a crime within the
meaning of Section 6 of Article XIII B of the California
Constitution.