BILL NUMBER: SB 1841	AMENDED
	BILL TEXT

	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, as amended, 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.   The bill would permit employees to
bring a civil action against employers that violate the bill's
provisions and would specify the damages to which employees are
entitled. 
   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.
   Vote:  majority.  Appropriation:  no.  Fiscal committee:  yes.
State-mandated local program:  yes.


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  by any
means other than direct observation, including the use of 
 through the use of an electronic device including, but not
limited to,  a computer, telephone, wire, radio, camera, or
electromagnetic, photo-electronic, or photo-optical system.  

   (2) "Employee" means any person who performs services for wages or
salary under a contract of employment, express or implied, for an
employer.  "Employee" does not include a vendor.
   (3) "Employer" means any person, partnership, corporation, or
other organization engaged in commerce, or any other person or
organization that obtains the services of individuals in exchange for
financial remuneration. 
   (b) (1) Except as provided under subdivision (d), an employer that
intentionally engages in electronic monitoring of an employee
without first having provided the employee with notice pursuant to
subdivision (c) is liable to the employee for relief as set forth in
subdivision (e).  
   (2) Not later than one year after first providing notice of
electronic monitoring to an employee, and annually thereafter, an
employer shall provide notice pursuant to subdivision (c) to all
employees who are subject to electronic monitoring.
   (3)  
   (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 type of computer usage that will
be monitored.
   (B) The means by which the monitoring will be accomplished.
   (C) The kinds of information that will be obtained through the
monitoring, including whether communications or computer usage not
related to the employer's business are likely to be monitored.
   (D) The frequency of the monitoring.
   (E) The manner in which information obtained by the monitoring
will be stored, used, or disclosed.
   (2) Notice by placing signs in the workplace does not constitute
clear and conspicuous notice pursuant to this section.
   (d) Notwithstanding this section, an employer may conduct
electronic monitoring without notice to an employee if the employer
has reasonable grounds to believe that:
   (1) A particular employee is engaged in  behavior that
violates the legal rights of the employer or another person and may
result in significant harm to the employer or another person.
  unlawful conduct. 
   (2) Electronic monitoring will produce evidence of the employee's
 behavior   unlawful conduct  and will be
conducted in accordance with other applicable state and federal laws.
  
   (e) Any person aggrieved by any act in violation of this section
may file a civil action and may recover actual damages, but not less
than liquidated damages in the amount of five thousand dollars
($5,000), punitive damages, reasonable attorney's fees and other
litigation costs reasonably incurred, and any other preliminary and
equitable relief as the court deems appropriate.
   (f)  
   (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.  
   (g)  
   (f)  Nothing in this section may be construed to preempt,
modify, or amend any county or local law, ordinance, or regulation
providing greater protection to employees.  
   (g) The provisions of this section may not be construed as
enhancing or diminishing an employee's reasonable expectation of
privacy under state or federal law. 
  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.