BILL ANALYSIS
SB 1841
Page 1
SENATE THIRD READING
SB 1841 (Bowen)
As Amended August 4, 2004
Majority vote
SENATE VOTE :23-13
LABOR AND EMPLOYMENT 6-2 APPROPRIATIONS 14-5
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|Ayes:|Koretz, Mullin, Chan, |Ayes:|Chu, Berg, Laird, |
| |Chu, Laird, Leno | |Firebaugh, Goldberg, |
| | | |Leno, Nation, Negrete |
| | | |McLeod, Oropeza, Pavley, |
| | | |Ridley-Thomas, Wesson, |
| | | |Wiggins, Yee |
| | | | |
|-----+--------------------------+-----+--------------------------|
|Nays:|Shirley Horton, Campbell |Nays:|Runner, Bates, Daucher, |
| | | |Haynes, Keene |
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SUMMARY : Requires employers to give their employees clear and
conspicuous notice of the fact that they engage in electronic
monitoring of their employees. Specifically, this bill :
1)Prohibits employers from intentionally engaging in electronic
monitoring of employees without first providing notice to the
employees.
2)Requires an employer, before implementing a material change in
an electronic monitoring practice, to provide notice to all
employees who will be subject to electronic monitoring as a
result of the change in practice.
3)Defines "electronic monitoring" as 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.
4)Defines "employee" to include, but is not limited to, an
individual employed by any corporation, sole proprietorship,
partnership, or any other business or entity or by the state
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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.
5)Provides that the notice requirement is satisfied if each
employee is given a notice that does the following:
a) Describes the form of communication or other activity
that will be monitored; and,
b) The kinds of information that will be obtained.
6)Allows an employer to conduct electronic monitoring without
notice to an employee if the employer has reasonable grounds
to believe that both of the following:
a) A particular employee is engaged in unlawful conduct;
and,
b) Electronic monitoring will produce evidence of the
employee's unlawful conduct and will be conducted in
accordance with other applicable state and federal laws.
7)Provides that placing signs in the workplace by itself does
not constitute sufficient notice.
8)Provides that the rights in this bill 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 required notice may be included in a
contract if the notice complies with specified requirements.
9)Provides that 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.
10)Provides that nothing in this bill may be construed to
preempt, modify, or amend any county or local law, ordinance,
regulation, or collective bargaining agreement providing
greater protection to employees.
11)Provides that an employer who provides notice to employees of
the monitoring or recording of telephone conversations
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pursuant to the California Public Utilities Commission (PUC)
General Order 107-B is deemed to be in compliance with the
notice requirements as they relate to the monitoring or
recording of employee telephone conversations.
EXISTING LAW :
1)Provides, under Article 1 of the California Constitution,
every California resident with a right to privacy. This right
is enforceable through a private right of action when a
person's "reasonable expectation of privacy" is violated.
2)Allows employers to monitor employee phone calls for training
or quality control purposes, or if notice of monitoring is
provided by verbal announcement or by placing a repeating
"distinct signal" on the call.
3)Allows for the recording of conversations if parties to a
conversation are notified of recording by distinct "beep tone"
or recorded message (PUC General Order 107-B).
4)Provides that no employer may cause an audio or video
recording to be made of an employee in a restroom, locker
room, or room designated by an employer for changing clothes,
unless authorized by court order.
5)Provides, with specific exemptions, that a person who installs
or who maintains any two-way mirror permitting observation of
any restroom, toilet, bathroom, washroom, shower, locker room,
fitting room, motel room, or hotel room, is guilty of a
misdemeanor.
EXISTING FEDERAL LAW prohibits any individual from intentionally
intercepting any wire, oral, or electronic communication.
Various oral communications, including almost all telephone
calls, are exempt from this prohibition. In addition, there are
several exceptions to the prohibition, including intercepts
obtained in the ordinary course of business, or where one of the
parties to the communication consents. Also, the prohibition
does not apply to devices, which capture information about a
communication without capturing its contents.
FISCAL EFFECT : According to the Assembly Appropriations
Committee, no state fiscal impact. The bill conforms to current
state notice requirements. Violations would constitute a
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misdemeanor and local law enforcement costs not
state-reimbursable.
COMMENTS : Currently, there are no comprehensive laws that
protect privacy in the workplace employers are within their
rights if they decide to read employee email, look at employee
personal computer files, or use other methods to electronically
monitor employees.
There is no requirement to tell employees that their activities
in the workplace may be monitored, with the exception of laws
covering telephone use.
Recent studies show most employers monitor employee e-mail and
Internet use. For example, The American Management
Association's 2003 E-Mail Rules, Policies and Practices Survey
found 52% of U.S. companies engage in some form of e-mail
monitoring of employees, compared to only 14.7% in 1997.
According to a 2003 survey of 192 companies conducted by the
Center for Business Ethics at Bentley College in Massachusetts,
92% of employers monitor employee e-mail and Internet use. While
almost all of the companies surveyed said they allow reasonable
personal use of computer and e-mail systems, less than half said
they actually define for employees what is considered
"reasonable."
Prior Legislation: Provisions similar to this bill were
contained in SB 147 (Bowen) of the 2001,
SB 1822 (Bowen) of the 2000, and SB 1016 (Bowen) of the 1999.
These bills were all vetoed by Governor Davis. However, those
bills required employers to obtain signed acknowledgements of
notice from employees. This bill does not require signed
acknowledgments.
Analysis Prepared by : Nick Louizos / L. & E. / (916) 319-2091
FN: 0007734