I
103D CONGRESS
1ST SESSION
H. R. 1900
To prevent abuses of electronic monitoring in the workplace.
IN THE HOUSE OF REPRESENTATIVES
APRIL 28, 1993
Mr. WILLIAMS (for himself, Mr. FORD of Michigan, Mr. CLAY, Mr. MILLER
of California, Mr. MURPHY, Mr. KILDEE, Mr. OWENS, Mr. SAWYER, Mr.
EDWARDS of California, Mr. BERMAN, Mr. WASHINGTON, Mr. PASTOR,
Mr. SOLOMON, and Mr. SHAYS) introduced the following bill; which was
referred to the Committee on Education and Labor
JUNE 23, 1993
Additional sponsors: Mr. STOKES, Mr. DELLUMS, Mr. WHEAT, Mr. BROWDER,
Mr. STARK, Mrs. CLAYTON, Mr. LIPINSKI, Mr. HOCHBRUECKNER, Mrs.
UNSOELD, Ms. PELOSI, Mr. VENTO, Mr. WAXMAN, Mr. FILNER, Mr. RO-
MERO-BARCELO´, Mr. SCHIFF, Ms. WOOLSEY, Mr. SKAGGS, Mr. MINETA,
Mr. SPRATT, Mr. SANGMEISTER, Mr. BONIOR, Mr. TRAFICANT, Mr.
MATSUI, Mr. RAVENEL, Mr. STUPAK, Mr. SPENCE, Mr. PARKER, Mr.
SLATTERY, Mr. DERRICK, Mr. BOEHLERT, Mr. VOLKMER, Mr. INGLIS of
South Carolina, Mr. DARDEN, Mr. DURBIN, Mr. SCOTT, Mr. BEILENSON,
Mr. YATES, Mr. FISH, Mr. CLYBURN, Mr. GONZALEZ, Mr. BROWN of
Ohio, Mrs. MINK, Mr. OLVER, and Ms. VELA´ZQUEZ
Deleted sponsor: Ms. ENGLISH of Arizona (added May 6, 1993; deleted June
18, 1993)
SEPTEMBER 14, 1993
Additional sponsors: Mr. GLICKMAN, Mr. SABO, Ms. NORTON, Mr.
MCDERMOTT, Mr. HAMBURG, Mr. BECERRA, Mr. GENE GREEN of Texas,
Mr. SCHUMER, Mr. FOGLIETTA, Mr. DE LUGO, Mr. SERRANO, Mr. AP-
PLEGATE, Mr. EVANS, Mr. FINGERHUT, Mr. PALLONE, Mr. PRICE of
North Carolina, Mrs. LOWEY, Mr. RANGEL, Mr. DEFAZIO, Mr. FROST,
Mr. SYNAR, Mr. TORRES, Mr. MCCURDY, Mr. OBERSTAR, Ms. KAPTUR,
Mr. WILSON, Mr. KOPETSKI, Mr. FAZIO, Mrs. MALONEY, Mr. MCCLOS-
KEY, Mr. BACCHUS of Florida, Mr. GEPHARDT, Mr. NEAL of Massachu-
setts, Mr. JEFFERSON, Mr. BORSKI, Mrs. SCHROEDER, Mr. PETERSON
of Minnesota, Mr. ACKERMAN, Mr. COOPER, Miss COLLINS of Michigan,
Mr. ENGLISH of Oklahoma, Ms. BYRNE, Mr. KREIDLER, Mr. SANDERS,
Mr. CRAMER, Mr. TOWNS, Mr. BRYANT, Mr. DEUTSCH, Mr. GEJDENSON,
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Ms. ROYBAL-ALLARD, Mr. PENNY, Mr. STUDDS, Mr. RUSH, Ms. ESHOO,
Mr. MINGE, Mr. COSTELLO, Mr. COLEMAN, and Mr. HAMILTON
A BILL
To prevent abuses of electronic monitoring in the workplace.
Be it enacted by the Senate and House of Representa-
tives of the United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ‘‘Privacy for Consumers
and Workers Act’’.
SEC. 2. DEFINITIONS.
As used in this Act:
(1) ELECTRONIC MONITORING.—
(A) IN GENERAL.—Except as provided in
subparagraph (C), the term ‘‘electronic mon-
itoring’’ means the collection, storage, analysis,
or reporting of information concerning an em-
ployee’s activities by means of a computer, elec-
tronic observation and supervision, telephone
service observation, telephone call accounting,
or other form of visual, auditory, or computer-
based technology which is conducted by any
method other than direct observation by an-
other person, including the following methods:
Transfer of signs, signals, writing, images,
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sounds, data, or intelligence of any nature
which are transmitted in whole or in part by a
wire, radio, electromagnetic, photoelectronic, or
photo-optical system.
(B) TELEPHONE CALL ACCOUNTING.—For
purposes of subparagraph (A), the term ‘‘tele-
phone call accounting’’ means the practice of
recording the telephone numbers called by a
specific telephone or group of telephones, in-
cluding—
(i) the telephone number from which
a call is being made,
(ii) the telephone number which is
being called,
(iii) the time when the telephone call
was connected,
(iv) the time when the telephone call
was completed, and
(v) identification of the operator, if
any, who assisted in placing the telephone
call,
for the purpose of individual employee evaluations or
the setting of production quotas or work perform-
ance expectations.
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(C) EXCLUSION.—The term ‘‘electronic
monitoring’’ does not include—
(i) wiretapping, or
(ii) the electronic transfer of—
(I) payroll data,
(II) insurance and other benefit
data,
(III) employee job application
data, or
(IV) other personnel-related data
which an employer may collect under
section 5(a),
for administrative purposes only.
(2) EMPLOYEE.—The term ‘‘employee’’ means
any current, former, or leased employee of an em-
ployer.
(3) EMPLOYER.—The term ‘‘employer’’ means
any person who—
(A) is engaged in commerce, and
(B) who employs employees,
and includes any individual, corporation, partner-
ship, labor organization, unincorporated association,
or any other legal business, the Federal Government,
any State (or political subdivision thereof), and any
agent of the employer.
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(4) PERSONAL
DATA.—The term ‘‘personal
data’’ means any information concerning an em-
ployee which, because of name, identifying number,
mark, or description, can be readily associated with
a particular individual, and such term includes infor-
mation contained in printouts, forms, or written
analyses or evaluations.
(5) PROSPECTIVE EMPLOYEE.—The term ‘‘pro-
spective employee’’ means an individual who has ap-
plied for a position of employment with an employer.
(6) TELEPHONE SERVICE OBSERVATION.—The
term ‘‘telephone service observation’’ means the
practice of listening to or recording telephone calls
being made by, or received by, an employee in order
to monitor the quality of service provided by the
employee.
(7) SECRETARY.—The term ‘‘Secretary’’ means
the Secretary of Labor.
SEC. 3. GENERAL REQUIREMENTS.
(a) ENGAGING IN ELECTRONIC MONITORING.—An
employer may engage in electronic monitoring of the em-
ployer’s employees if—
(1) the employer provides the notices required
by section 4,
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(2) if section 5 applies, the employer complies
with the requirements of such section,
(3) the employer complies with section 9, and
(4) the employer does not violate section 11.
(b) REVIEW AND USE.—An employer may review
data obtained by electronic monitoring of the employer’s
employees if the employer meets the requirements of sec-
tion 6 and may use such data if the employer meets the
requirements of section 8.
SEC. 4. NOTICE REQUIREMENTS.
(a) SECRETARY’S NOTICE.—The Secretary shall pre-
pare, have printed, and distribute to employers a notice
which will inform employees—
(1) that an employer engages in or may engage
in electronic monitoring of employees and specifies
the circumstances (including the monitoring and ex-
ception described in section 5) under which an em-
ployee is or is not entitled to additional notice under
this section, and
(2) of the rights and protections provided to
employees by this Act.
Each employer who engages in electronic monitoring shall
post and maintain such notice in conspicuous places on
its premises where notices to employees are customarily
posted.
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(b) EMPLOYER’S SPECIFIC NOTICE.—Each employer
shall provide to each employee who will be electronically
monitored with prior written notice describing the follow-
ing regarding the electronic monitoring of such employee:
(1) The forms of electronic monitoring to be
used.
(2) The personal data to be collected.
(3) The hours and days per week that electronic
monitoring will occur.
(4) The use to be made of personal data col-
lected.
(5) Interpretation of printouts of statistics or
other records of information collected through elec-
tronic monitoring if the interpretation affects the
employees.
(6) Existing production standards and work
performance expectations.
(7) Methods for determining production stand-
ards and work performance expectations based on
electronic monitoring statistics if the methods affect
the employees.
The notice required by this subsection shall also include
a description of the monitoring and the exception which
is authorized under section 5(c)(1) to be undertaken with-
out providing such notice.
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(c) EMPLOYER’S NOTICE TO PROSPECTIVE EMPLOY-
EES.—
(1) IN GENERAL.—Each employer shall notify a
prospective employee at the first personal interview
of existing forms of electronic monitoring conducted
by the employer which may affect the prospective
employee if such employee is hired by the employer.
(2) SPECIFIC
NOTICE.—Each employer, upon
request by a prospective employee or when the em-
ployer offers employment to a prospective employee,
shall provide the prospective employee with the writ-
ten notice described in subsection (b).
(d) CUSTOMER NOTICE.—Employers who engage in
the practice of telephone service observation shall inform
customers who may be subject to such observation of such
practice in any recorded message used in connection with
customer telephone calls. If the employer does not use
such a recorded message, the employer shall prominently
place in each of its customer bills a statement that the
employer is engaging in such practice.
(e) PUBLIC NOTICE.—If an employer engages in elec-
tronic monitoring which may include members of the pub-
lic who are not employees of the employer, the employer
shall notify such individuals of such monitoring. Such no-
tice may take the form that is reasonably calculated to
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reach members of the public who may be affected by such
monitoring.
SEC. 5. PERIODIC OR RANDOM ELECTRONIC MONITORING.
(a) GENERAL RULE.—No employer may engage in
electronic monitoring of any of the employer’s employees
on a periodic or random basis except as authorized by sub-
section (b).
(b) AUTHORITY.—
(1) NEW EMPLOYEES.—An employer may en-
gage in random and periodic monitoring of an em-
ployee of such employer if the cumulative total pe-
riod of such employee’s employment is not more
than 60 days.
(2) OTHER EMPLOYEES.—An employer may not
engage in random and periodic monitoring of an em-
ployee with a cumulative employment period with
such employer of at least 5 years.
(3) WORK GROUPS.—An employer may engage
in electronic monitoring of an employee of such em-
ployer who has a cumulative employment period with
such employer of less than 5 years and who is in a
work group of employees on a periodic or random
basis for not more than 2 hours in any week. Except
as provided in subsection (c), the section 4(b) notice
to each employee within such work group for such
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monitoring shall be provided at least 24 hours but
not more than 72 hours before engaging in such
monitoring. For purposes of this subsection, the
term ‘‘work group’’ means a group of employees em-
ployed in a single facility and engaged in substan-
tially similar work at a common time and in physical
proximity to each other.
(c) EXCEPTION TO NOTICE REQUIREMENT.—
(1) IN GENERAL.—Subject to paragraph (2), if
an employer has a reasonable suspicion that any em-
ployee is engaged in conduct which—
(A) violates criminal or civil law or con-
stitutes willful gross misconduct, and
(B) adversely affects the employer’s inter-
ests or the interests of such employer’s employ-
ees,
the employer may engage, on the employer’s work-
site, in electronic monitoring of such employee or of
an area in which the actions described in subpara-
graphs (A) and (B) occur without providing the no-
tice required by section 4(b) and without regard to
subsection (a) or (b) of section 9.
(2) STATEMENT.—Before engaging in the elec-
tronic monitoring described in paragraph (1), an
employer shall execute a statement setting forth—