BILL ANALYSIS
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|SENATE RULES COMMITTEE | SB 1841|
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UNFINISHED BUSINESS
Bill No: SB 1841
Author: Bowen (D)
Amended: 8/4/04
Vote: 21
SENATE JUDICIARY COMMITTEE : 4-1, 4/13/04
AYES: Escutia, Cedillo, Kuehl, Sher
NOES: Morrow
NO VOTE RECORDED: Ackerman, Ducheny
SENATE APPROPRIATIONS COMMITTEE : 8-5, 5/20/04
AYES: Alpert, Bowen, Burton, Escutia, Karnette, Machado,
Murray, Speier
NOES: Battin, Aanestad, Ashburn, Johnson, Poochigian
SENATE FLOOR : 23-13, 5/25/04
AYES: Alarcon, Alpert, Bowen, Burton, Cedillo, Chesbro,
Dunn, Escutia, Figueroa, Florez, Karnette, Kuehl,
Machado, Murray, Ortiz, Perata, Romero, Scott, Sher,
Soto, Speier, Vasconcellos, Vincent
NOES: Aanestad, Ackerman, Ashburn, Battin, Brulte, Denham,
Hollingsworth, Johnson, Margett, McClintock, McPherson,
Oller, Poochigian
NO VOTE RECORDED: Ducheny, Morrow, Torlakson
SUBJECT : Electronic monitoring of employees
SOURCE : Author
DIGEST : This bill requires employers to give their
employees clear and conspicuous notice of the fact that
CONTINUED
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they engage in electronic monitoring of their employees.
Assembly amendments define "employee" and make other
technical and clarifying changes.
ANALYSIS : 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.
Existing law, the California Constitution, provides 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.
Existing state law, which governs intrastate calls, 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.
Existing state law also allows for the recording of
conversations if a regular "beep tone" is placed on the
call.
Existing state law 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.
Existing state law generally provides for a civil penalty
of $100 per employee per pay period for violations of any
Labor Code provision (which increases to $200 for
subsequent violations). These penalties may be recovered
by private right of action if no agency action is taken on
a violation.
This bill requires an employer to provide clear and
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conspicuous notice to its employees of any electronic
monitoring.
This bill 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, telephone, wire, radio, or camera.
This bill provides that its notice requirement is satisfied
if each employee is given a notice that (1) describes the
form of communication, type of computer usage, or type of
electronic device that will be monitored, (2) the means by
which the monitoring will be accomplished, (3) the kinds of
information that will be obtained.
This bill exempts monitoring activities where (1) the
employer has reasonable grounds to believe that an employee
is engaged in unlawful conduct, and (2) the electronic
monitoring will produce evidence of the employee's unlawful
conduct and is in compliance with other laws.
The bill provides that the provisions of the bill may not
be construed as enhancing or diminishing an employee's
reasonable expectation of privacy under state and federal
law.
The bill defines:
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
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University of California.
The bill provides that 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, as specified.
The bill 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. 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.
The bill also provides 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.
Prior Legislation
SB 147 (Bowen) -- 2001-02 Session, SB 1822 (Bowen) -
1999-2000 Session, and SB 1016 (Bowen) - 1999-2000 Session .
All contained provisions similar to this bill. The bills
were all vetoed by Governor Davis.
FISCAL EFFECT : Appropriation: No Fiscal Com.: Yes
Local: Yes
SUPPORT : (Verified 5/20/04) (Unable to re-verify)
American Civil Liberties Union
American Federation of Television and Radio Artists,
AFL-CIO
California Conference Board of the Amalgamated Transit
Union
California Conference of Machinists
California Federation of Teachers
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California Labor Federation, AFL-CIO
California Independent Public Employees Legislative Council
California School Employees Association
California State Association of Electrical Workers
California State Employees Association
California State Pipe Trades Council
California Teamsters Public Affairs Council
Coalition of University Employees
Consumer Federation of California
Engineers and Scientists of California, IFPTE Local 20
Hotel Employees, Restaurant Employees International Union
Privacy Rights Clearinghouse
Professional & Technical Engineers, IFPTE Local 21
Region 8 States Council of the United Food & Commercial
Workers
Western States Council of Sheet Metal Workers
OPPOSITION : (Verified 5/20/04) (Unable to re-verify)
American Staffing Association
California Chamber of Commerce;
California Manufacturers & Technology Association
California Staffing Professionals
Construction Materials Association of California
Motion Picture Association of America
ARGUMENTS IN SUPPORT : The Privacy Rights Clearinghouse
argues that:
"Because of advances in technology, workplace
monitoring can be virtually ubiquitous, covering all
aspects of employees' work, even extending beyond the
workplace. Monitoring can be conducted of electronic
mail, voice mail, telephone calls, computer keystrokes,
internet access, locational tracking via GPS and RFID
[radio frequency identification device], and video
surveillance.
"Specific task-oriented monitoring has a limited place
in the workplace - for training and quality control, as
well as fraud prevention. However, such monitoring
need not and should not be conducted in secret. The
PRC believes that workplace monitoring should be
conducted with transparency so that employees are clear
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on what activities will be monitored. SB 1841 ensures
such transparency."
ARGUMENTS IN OPPOSITION : The California Manufacturers
and Technology Associations argues that the bill is
conceptually flawed, writing that:
"SB 1841 would create a major administrative burden on
employers by requiring special procedures to be set up
to inform employees . . .This is a particularly onerous
requirement for employers given that there is no
dispute that the electronic devices belong to the
company and [are] solely intended for work. Moreover,
employers have a right and obligation to police the use
of their equipment to [e]nsure that it is not misused
for . . . unauthorized or illegal activities. It seems
to us that it is the employee who should be seeking
permission from the employer to use the equipment for
personal or non-work related use."
RJG:cm 8/17/04 Senate Floor Analyses
SUPPORT/OPPOSITION: SEE ABOVE
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