•HR 1900 SC2
(A) with particularity the conduct which is
being monitored and the basis for the monitor-
ing, and
(B) an identification of the specific eco-
nomic loss or injury to the business of the em-
ployer resulting from such conduct or the injury
to the interests of such employer’s employees.
The employer shall sign the statement and retain it
for 3 years from the date the monitoring began or
until judgment is rendered in an action brought
under section 12(c) by an employee affected by such
monitoring, whichever is later.
SEC. 6. REVIEW OF CONTINUOUS ELECTRONIC MONITOR-
ING.
(a) REVIEW DURING MONITORING.—
(1) IN GENERAL.—Except as provided in para-
graph (2), no employer may review data, obtained by
continuous electronic monitoring of the employer’s
employees, on a periodic or random basis.
(2) EXCEPTION.—The following are not subject
to paragraph (1):
(A) the review by an employer of electronic
data obtained from the use of an electronic card
system,
•HR 1900 SC2
(B) the review of electronic data obtained
from video monitoring (with or without an
audio track) which is used to deter crime by
persons and to provide evidence to law enforce-
ment personnel, and
(C) the review of data which is continu-
ously monitored by an employer and which ap-
pears simultaneously on multiple television
screens or sequentially on a single screen.
(b) REVIEW AFTER MONITORING.—An employer may
review data obtained by continuous electronic monitoring
of the employer’s employees after the monitoring was com-
pleted only if review was limited to specific data which
the employer has reason to believe contains information
relevant to an employee’s work.
SEC. 7. EMPLOYEE REVIEW OF RECORDS.
(a) IN GENERAL.—Except as provided in subsection
(b), each employer shall provide an employee (or the em-
ployee’s authorized agent) with a reasonable opportunity
to review all personal data obtained by electronic monitor-
ing of the employee.
(b) EXCEPTION.—
(1) IN GENERAL.—Except as provided in para-
graph (2), an employer is not required to provide an
employee a reasonable opportunity to review data
•HR 1900 SC2
which are obtained by electronic monitoring de-
scribed in section 5(c)(1).
(2) REVIEW PERMITTED.—If—
(A) the investigation by an employer with
respect to which electronic monitoring described
in section 5(c)(1) was conducted on an em-
ployee has been completed, or
(B) disciplinary action has been initiated
by an employer against the employee who was
the subject of such electronic monitoring,
whichever occurs first, such employer shall promptly
provide such employee with an opportunity to review
the personal data obtained from such electronic
monitoring.
SEC. 8. USE OF DATA COLLECTED BY ELECTRONIC MON-
ITORING.
(a) EMPLOYER ACTIONS.—An employer shall not
take any action against an employee on the basis of per-
sonal data obtained by electronic monitoring of such em-
ployee unless the employer has complied with the require-
ments of this Act.
(b) DATA SHALL NOT BE USED AS SOLE BASIS FOR
EVALUATION OR PRODUCTION QUOTAS.—
(1) IN GENERAL.—Except as provided in para-
graph (2), an employer shall not use quantitative
•HR 1900 SC2
data on an employee which is obtained by electronic
monitoring and which records the amount of work
performed by such employee within a specific time
as the sole basis for—
(A) individual employee performance eval-
uation, or
(B) setting production quotas or work per-
formance expectations.
(2) EXCEPTION.—If an employee is not working
at a facility of an employer and transmits the em-
ployee’s work to the employer electronically, such
employer may use the quantitative data described in
paragraph (1) for the purposes described in sub-
paragraphs (A) and (B) of paragraph (1) if such
data is the only basis available to such employer for
such purposes.
SEC. 9. PRIVACY PROTECTIONS.
(a) COLLECTION.—
(1) IN GENERAL.—Except as provided in para-
graph (2), no employer may intentionally collect per-
sonal data about an employee through electronic
monitoring if the data are not confined to the em-
ployee’s work, unless the employee is a customer of
the employer at the time of the electronic monitor-
ing.
•HR 1900 SC2
(2) EXCEPTION.—Electronic monitoring by an
employer whose purpose and principal effect is to
collect data about the work of an employee or to col-
lect data on subjects who are not employees of the
employer is not prohibited by paragraph (1) because
it incidentally collects data which is not confined to
such employee’s work.
(b) PRIVATE AREAS.—NO EMPLOYER MAY ENGAGE
IN ELECTRONIC MONITORING IN—
(1) bathrooms,
(2) locker rooms, or
(3) dressing rooms,
except that if the employer has a reasonable suspicion that
an employee is engaged in conduct which violates civil or
criminal law and which adversely affects the employer’s
interests or the interests of such employer’s employees, the
employer may engage in electronic monitoring of such em-
ployee in a place described in paragraph (1), (2), or (3)
if the employer executes, in accordance with section
5(c)(2), the statement required by such section.
(c) FIRST AMENDMENT RIGHTS.—
(1) IN GENERAL.—An employer shall not inten-
tionally engage in electronic monitoring or use or
disseminate personal data obtained by electronic
•HR 1900 SC2
monitoring of an employee when the employee is ex-
ercising First Amendment rights.
(2) EXCEPTION.—Electronic monitoring by an
employer whose purpose and principal effect is to
collect data about the work of an employee of the
employer is not prohibited by paragraph (1) because
it collects some incidental data concerning the exer-
cise of an employee’s First Amendment rights.
(d) DISCLOSURE LIMITATIONS.—
(1) IN GENERAL.—Except as provided in para-
graph (2), an employer shall not disclose personal
data obtained by electronic monitoring to any person
or business entity except to (or with the prior writ-
ten consent of) the individual employee to whom the
data pertain, unless the disclosure would be—
(A) to officers and employees of the em-
ployer who have a legitimate need for the infor-
mation in the performance of their duties;
(B) to a law enforcement agency in con-
nection with an investigation or prosecution; or
(C) pursuant to the order of a court of
competent jurisdiction.
(2) EXCEPTION.—An employer may disclose to
the public personal data obtained by electronic mon-
itoring of an employee if the data contain evidence
•HR 1900 SC2
of illegal conduct by a public official or have a direct
and substantial effect on public health or safety.
SEC. 10. ACCESS TO DATA.
When an employer has an immediate need for specific
data and if the employee who maintains such data is not
available, the employer may access such data if—
(1) the data is alphanumeric and do not include
data obtained by the aural or visual monitoring of
employees or the interception of employee commu-
nications,
(2) the data will not be used for the purpose of
discipline or performance evaluation, and
(3) the employer notifies the employee who
maintains such data that the employer has accessed
such data and provides such notice within a reason-
able time after the access has occurred.
SEC. 11. PROHIBITIONS.
No employer may—
(1) violate any requirement of this Act,
(2) engage in video monitoring with a video
camera which is not visible to the subject of the
monitoring, except in the case of monitoring de-
scribed in section 5(c)(1), 13(a), 13(b), or 13(c)(2),
•HR 1900 SC2
(3) interfere with, or deny the exercise or the
attempted exercise by, an employee of any right pro-
vided by section 9(c), or
(4) discharge, discipline, or in any manner dis-
criminate against an employee with respect to the
employee’s compensation or terms, conditions, or
privileges of employment because the employee (or
any person acting pursuant to a request of the em-
ployee) has—
(A) instituted any proceeding relating to a
violation of this Act,
(B) has testified or is about to testify in
any such proceedings, or
(C) disclosed information which the em-
ployee reasonably believes evidences a violation
of this Act.
SEC. 12. ENFORCEMENT PROVISIONS.
(a) CIVIL PENALTIES.—
(1) IN GENERAL.—Subject to paragraph (2),
any employer who violates any provision of this Act
may be assessed a civil penalty of not more than
$10,000 for each such violation.
(2) CONSIDERATIONS.—In determining the
amount of any penalty under paragraph (1), the
Secretary shall take into account the previous record
•HR 1900 SC2
of the person in terms of compliance with this Act
and the gravity of the violation.
(3) ASSESSMENT AND COLLECTION.—Any civil
penalty under this subsection shall be assessed by
the Secretary and shall be collected in the same
manner as is required by subsections (b) through (e)
of section 503 of the Migrant and Seasonal Agricul-
tural Worker Protection Act (29 U.S.C. 1853) with
respect to civil penalties assessed under subsection
(a) of such section.
(b) ACTIONS BY THE SECRETARY.—The Secretary
may bring an action under this section to restrain viola-
tions of this Act. The Solicitor of Labor may appear for
and represent the Secretary in any litigation brought
under this Act. In any action brought under this section,
the district courts of the United States shall have jurisdic-
tion, for cause shown, to issue temporary or permanent
restraining orders and injunctions to require compliance
with this Act, including such legal or equitable relief inci-
dent thereto as may be appropriate, including employ-
ment, reinstatement, promotion, and the payment of lost
wages and benefits.
(c) PRIVATE CIVIL ACTIONS.—
(1) IN
GENERAL.—An employer who violates
this Act shall be liable to the employee or prospec-
•HR 1900 SC2
tive employee affected by such violation. Such em-
ployer shall be liable for such legal or equitable relief
as may be appropriate, including employment, rein-
statement, promotion, and the payment of lost wages
and benefits.
(2) JURISDICTION.—An action to recover the li-
ability prescribed in paragraph (1) may be main-
tained against the employer in any Federal or State
court of competent jurisdiction by any person for or
on behalf of an employee or prospective employee.
(3) LIMITATION.—No such action may be com-
menced more than 3 years after the date—
(A) the employee knew of, or
(B) the employee could reasonably be ex-
pected to know of,
the alleged violation.
(4) COSTS.—The court shall allow the prevail-
ing party (other than the United States) reasonable
costs, including attorneys’ and expert witness fees.
(d) WAIVER OF RIGHTS PROHIBITED.—The rights
and procedures provided by this Act may not be waived
by contract or otherwise, unless such waiver is part of a
written settlement agreed to and signed by the parties to
a pending action or complaint under this Act.
•HR 1900 SC2
SEC. 13. APPLICATION.
(a) LAW ENFORCEMENT.—This Act shall not apply
to electronic monitoring administered by law enforcement
agencies as may otherwise be permitted in criminal inves-
tigations.
(b) WORKERS’ COMPENSATION.—This Act does not
apply to electronic monitoring conducted by an employer
of the employer’s employees in connection with an inves-
tigation of a workers’ compensation claim.
(c) REQUIRED MONITORING.—
(1) INTELLIGENCE.—This Act (other than sec-
tions 4(a) and 7) shall not apply to electronic mon-
itoring conducted by or for—
(A) the intelligence community, as defined
in Executive Order 12333 (or successor order),
or
(B) intelligence community contractors
with respect to contracts that bear upon na-
tional security information, as defined by Exec-
utive Order 12356 (or successor order).
(2) OTHER MONITORING.—This Act (other than
sections 4(a), 4(b)(1), 4(b)(2), 4(b)(4), 7, 8, and 9)
shall not apply to electronic monitoring—
(A) conducted by an employer pursuant to
Federal law (including regulations) governing
•HR 1900 SC2
public safety or security for public transpor-
tation,
(B) conducted by an employer registered
under section 6, 15, 15A, 15B, 15C, or 17A of
the Securities Exchange Act of 1934 (15
U.S.C. 78 et seq.), section 8(a) of the Invest-
ment Company Act of 1940 (15 U.S.C. 80a–
1(a)), or sections 202(a)(11) and 203(a) of the
Investment Advisers Act of 1940 (15 U.S.C.
80b–2(a)(11) and 80b–3(a)), conducted by an
employer or a person associated with an em-
ployer registered or exempt from such registra-
tion under sections 4d, 4e, 4k, or 4m of the
Commodity Exchange Act (7 U.S.C. 6d, 6e, 6k,
or 6m), conducted by a self-regulatory organiza-
tion or its affiliated clearinghouse designated,
registered, or exempt from registration under
section 6 or 17 of such Act (7 U.S.C. 8, 21),
or conducted by an employer who provides an
electronic trading system or other facilities for
one or more self-regulatory organizations des-
ignated, registered, or exempt from registration
under section 6 or 17 of such Act (7 U.S.C. 8,
21) if such monitoring is confined to manage-
ment or professional employees with significant
•HR 1900 SC2
financial responsibility which involves the use of
independent judgment,
(C) conducted by an employer that is a fi-
nancial institution, as defined in section 20 of
title 18, United States Code or subparagraph
(A), (B), (C), (D), or (F) of section 5312(a)(2)
of title 31, United States Code, if such monitor-
ing is confined to management or professional
employees with significant financial responsibil-
ity which involves the use of independent judg-
ment,
(D) conducted in or about a gaming or
gambling facility operating under license or per-
mit issued by a State regulatory agency and as
required by State law or regulations enacted or
adopted, before January 1, 1992, to deter or
detect criminal activities through electronic
monitoring, or
(E) conducted only to the extent necessary
to ensure an employee provides the notices re-
quired by the Truth in Lending Act and the
regulation under such Act designated Regula-
tion Z, the Equal Credit Opportunity Act and
the regulation under such Act designated Regu-
lation B, the Fair Credit Reporting Act, the
•HR 1900 SC2
Fair Credit Billing Act, the Fair Debt Collec-
tion Practices Act, the rule of the Federal
Trade Commission on credit practices, the regu-
lations and consent orders of the Federal Trade
Commission on unfair acts and practices, the
Telephone Consumer Protection Act of 1991
and regulations under such Act, and all cor-
responding State laws and regulations.
(3) ENFORCEMENT.—The provisions of this Act
made applicable to the electronic monitoring de-
scribed in paragraphs (1) and (2) shall be enforced
in accordance with section 12 of this Act.
(c) THIRD PARTY.—
(1) MONITORING
FOR
ANOTHER
PERSON.—A
person who engages in electronic monitoring may
not perform electronic monitoring for another person
unless the requirements of this Act are complied
with.
(2) USE
OF
DATA.—A person who contracts
with or otherwise obtains the services of a third
party to electronically monitor the employees of such
person may not use the data obtained from such
monitoring unless the requirements of this Act are
complied with.
•HR 1900 SC2
SEC. 14. REGULATIONS.
The Secretary shall, within 6 months after the date
of the enactment of this Act, issue regulations to carry
out this Act.
SEC. 15 PREEMPTION.
This Act shall not be construed to restrict, limit, or
eliminate a requirement of a State or political subdivision
of a State or of a collective bargaining agreement relating
to electronic monitoring which is more stringent than any
requirement of this Act.
SEC. 16. COVERAGE OF EMPLOYEES OF THE HOUSE OF
REPRESENTATIVES AND SENATE.
(a) APPLICATION.—With the exception of section 12,
this Act (including the substantive requirements of imple-
menting regulations issued under section 14) shall apply
to employees and to employing authorities.
(b) ADMINISTRATION.—
(1) HOUSE OF REPRESENTATIVES.—The rem-
edies and procedures of the Fair Employment Prac-
tices Resolution shall apply with respect to a viola-
tion of this Act as it is made applicable by sub-
section (a) to employees of the employing authorities
described in subsection (a)(2)(A). The Office of Fair
Employment Practices may, in addition to those
remedies available under the Fair Employment
Practices Resolution, assess such an employing au-
•HR 1900 SC2
thority a civil penalty of not more than $10,000 for
each violation. In determining the amount, the Of-
fice shall take into account the previous record of
the employing authority involved in terms of compli-
ance with this section and the gravity of the viola-
tion. Any such penalty collected shall be paid into
the Treasury of the United States.
(2) SENATE.—The remedies and procedures
utilized by the Office of Senate Fair Employment
Practices, established by section 303 of the Civil
Rights Act of 1991, shall apply with respect to a
violation of this Act as it is made applicable by sub-
section (a) to Senate employees of an employing au-
thority described in subsection (g)(2)(B). The Office
of Senate Fair Employment Practices may, in addi-
tion to those remedies otherwise available, assess
such an employing authority a civil penalty of not
more than $10,000 for each violation. In determin-
ing the amount, the Office shall take into account
the previous record of the employing authority in-
volved in terms of compliance with this section and
the gravity of the violation. Any such penalty col-
lected shall be paid into the Treasury of the United
States.
•HR 1900 SC2
(c) WAIVER OF RIGHTS PROHIBITED.—The rights
and procedures provided by this Act may not be waived
by contract or otherwise, unless such waiver is part of a
written settlement agreed to and signed by the parties to
a pending action or complaint under this Act.
(d) NOTICE.—Each employing authority shall post
and keep posted in conspicuous places on its premises a
notice that shall be—
(1) with respect to employing authorities de-
scribed in subsection (g)(2)(A), prepared by the Of-
fice of Fair Employment Practices, and
(2) with respect to employing authorities de-
scribed in subsection (g)(2)(B), prepared by the Of-
fice of Senate Fair Employment Practices,
setting forth such information as each such Office consid-
ers to be appropriate to carry out this section. Such notice,
at a minimum, shall provide the same information as that
required under section 4(a)(1).
(e) RULEMAKING.—Subsection (b) is enacted as an
exercise of the rulemaking power of the House of Rep-
resentatives and the Senate, with full recognition of the
right of the House of Representatives and the Senate to
change its rules in the same manner, and to the same ex-
tent, as in any other rule of the House of Representatives
and the Senate.
•HR 1900 SC2
(f) ENFORCEMENT.—Notwithstanding any other pro-
vision of this Act, no officer or employee of the executive
branch of the Federal Government shall have authority to
administer, interpret, or enforce this section.
(g) DEFINITIONS.—For purposes of this section—
(1) the term ‘‘employee’’ means any current,
prospective, or former employee of an employing au-
thority or any leased employee;
(2) the term ‘‘employing authority’’—
(A) has the meaning given it in the Fair
Employment Practices Resolution, except that
with respect to a position on the minority staff
of a committee, such term means the ranking
minority member of such committee; and
(B) in the case of a Senate employee, in-
cludes a head of employing office as that term
is defined by section 301(c)(2) of the Civil
Rights Act of 1991; and
(3) the term ‘‘Fair Employment Practices Reso-
lution’’ means—
(A) House Resolution 558 of the One
Hundredth Congress, as adopted October 4,
1988, and incorporated into rule LI of the
Rules of the House of Representatives of the
One Hundred Second Congress; or
•HR 1900 SC2
(B) any other provision that continues in
effect the provisions of such resolution.
SEC. 17. EFFECTIVE DATE.
This Act shall take effect on 6 months after the date
of the enactment of this Act, except that an employer who
is engaged in electronic monitoring on the expiration of
such 6 months shall have 60 days after such expiration
to provide each affected employee with the notice required
by this Act.
Æ
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