PRINTER'S NO. 166
No. 175 Session of 2005
INTRODUCED BY CORMAN, FUMO, WONDERLING, GORDNER, COSTA, RHOADES, TOMLINSON, KASUNIC, TARTAGLIONE, KITCHEN, MUSTO, O'PAKE, LAVALLE, ERICKSON, D. WHITE, STACK, ORIE AND C. WILLIAMS, FEBRUARY 7, 2005
REFERRED TO COMMUNICATIONS AND TECHNOLOGY, FEBRUARY 7, 2005
AN ACT 1 Providing for notice to employees of electronic monitoring by 2 employers of network and information technology resources; 3 establishing a cause of action; and imposing civil penalties. 4 The General Assembly of the Commonwealth of Pennsylvania 5 hereby enacts as follows: 6 Section 1. Short title. 7 This act shall be known and may be cited as the Workplace 8 Electronic Message Monitoring Act. 9 Section 2. Legislative findings and intent. 10 (a) Findings.--The General Assembly hereby finds and takes 11 notice that workplace electronic communication, specifically e- 12 mail messaging, has become a pervasive and standard form of 13 communication for most individuals, rivaling the use of 14 telephonic communications. Because of such widespread and 15 routine usage, e-mail messaging has become an accepted means 16 through which individuals communicate business-related or 17 nonbusiness-related information, including private or personal
1 information. As a result, the General Assembly recognizes that, 2 unless explicitly notified to the contrary, users of e-mail have 3 a reasonable and recognized expectation of privacy to their 4 electronic communication. Furthermore, the General Assembly also 5 recognizes that employers have a legitimate interest in ensuring 6 that their e-mail messaging systems are not being used in a 7 manner that is prohibited by law, constitutes discriminatory 8 conduct toward others or exposes the employer to civil 9 liability. 10 (b) Intent.--It is the intent of the General Assembly to 11 balance the expectations of privacy of employees who may use 12 workplace e-mail messaging systems to communicate personal or 13 private information with the legitimate needs of employers to 14 prevent misuse or abuse of their e-mail systems. To this end, 15 the General Assembly hereby enacts this act in an effort to 16 preserve the functionality of e-mail as a business tool for 17 increasing productivity and efficiency in the workplace and to 18 restore a higher sense of dignity to this growing form of 19 electronic communication by prohibiting employer monitoring of 20 e-mail communications unless employees have been clearly 21 notified of the possibility of such monitoring. 22 Section 3. Definitions. 23 The following words and phrases when used in this act shall 24 have the meanings given to them in this section unless the 25 context clearly indicates otherwise: 26 "Electronic communication." A transfer of signs, signals, 27 writing, images, sounds, data or intelligence of any nature 28 transmitted in whole or in part by a wire, radio, 29 electromagnetic, photoelectronic or photo-optical system. 30 "Electronic monitoring." The use of an electronic device to 20050S0175B0166 - 2 -
1 record, check, track, review or otherwise inspect e-mail or 2 electronic communication. 3 "E-mail." A message or messages sent or received 4 electronically over a computer network, including any and all 5 graphics and/or audio information and other electronic file 6 attachments. 7 "Employee." A person who performs services for an employer, 8 whether as an employee or otherwise, and has authorized access 9 to the employer's e-mail and other electronic communications 10 equipment and computer system, including computer equipment, 11 network, Internet access, data bases, electronic files, 12 software, telephone, radio or other types of information 13 technology. 14 "Employer." A person, firm or corporation, including the 15 Commonwealth and any political subdivision of the Commonwealth 16 that has employees. 17 Section 4. Notice of monitoring. 18 (a) General rule.--Except as provided in section 5 (relating 19 to exception to notice requirement), an employer who 20 intentionally reads, listens to or otherwise engages in 21 electronic monitoring, or otherwise monitors the computer usage 22 of an employee, without first having provided the employee with 23 notice meeting the requirements of subsection (b), shall be 24 liable to the employee for relief as provided under section 9 25 (relating to civil action). 26 (b) Form of notice.--A notice under this section shall be in 27 a clear and conspicuous written form distributed to and 28 acknowledged by all employees, written or electronically, in a 29 manner reasonably calculated to provide actual notice. The form 30 of notice required by this section may but need not be in the 20050S0175B0166 - 3 -
1 following form: 2 (Name of Company) 3 (Address of Company) 4 (Telephone Number of Company) 5 This notice is to inform you of (name of company)'s 6 (hereinafter the "company") intention to inspect, review 7 or retain electronic communications created, sent, 8 displayed, received or stored on or over its information 9 technology, network, Internet access, computer equipment, 10 data bases, files and software (collectively the 11 "computer system"). Company may monitor at any time, 12 without further notice to you, electronic communications 13 created, sent, displayed, received or stored on or over 14 its computer system, whether related to the company's 15 business or not. EMPLOYEES SHOULD NOT HAVE AN EXPECTATION 16 OF PRIVACY IN ANYTHING THEY CREATE, STORE, SEND, RECEIVE 17 OR DISPLAY ON OR OVER THE COMPANY'S COMPUTER SYSTEM. The 18 company may use human or automated means to monitor the 19 contents or use of its computer system. 20 Employee Acknowledgment 21 I have received, read and understand the foregoing notice 22 regarding monitoring electronic communications. 23 Employee's Signature:_________________________ 24 (c) Prior notification.--Where an employer has previously 25 provided notice of electronic monitoring prior to the effective 26 date of this act in a manner substantially similar to the form 27 provided for in subsection (b) the employer need not provide 28 notice of monitoring again. 29 (d) Additional notice.--This section sets forth minimum 30 notice requirements for employers. Nothing in this section shall 20050S0175B0166 - 4 -
1 preclude an employer from expressly providing employees 2 additional notice of the employer's monitoring activities. 3 Section 5. Exception to notice requirement. 4 An employer may conduct electronic monitoring without the 5 notice required under section 4 (relating to notice of 6 monitoring) if the employer has reasonable grounds to believe 7 that a particular employee of the employer is engaged in conduct 8 that: 9 (1) violates the legal rights of the employer or another 10 person; 11 (2) involves significant harm to the employer or such 12 other person; and 13 (3) the electronic monitoring is reasonably calculated 14 to lead to evidence of such conduct. 15 Section 6. Construction. 16 Notice set forth in accordance with section 4 (relating to 17 notice of monitoring) shall not be construed to impose an 18 obligation upon an employer to actually monitor e-mail or 19 electronic communications or to constitute the employer's 20 constructive notice of any activity occurring on or over its 21 computer network and/or other computer resources or information 22 technology. 23 Section 7. Investigation. 24 Nothing in this act shall be construed to prohibit an 25 employer who chooses not to monitor his employees from 26 investigating an employee's conduct as long as the employer is 27 in compliance with section 5 (relating to exception to notice 28 requirement). 29 Section 8. Verification. 30 Upon distributing notice to employees in accordance with 20050S0175B0166 - 5 -
1 section 4 (relating to notice of monitoring), the employer shall 2 require every affected employee to sign or electronically verify 3 that the employee has received, read and understood the notice. 4 If an affected employee to whom notice has been provided 5 declines to sign or electronically verify that the employee has 6 received, read and understood the notice, the employer may 7 comply with the requirements of this section by having the 8 person who provided the notice to the affected employee sign and 9 retain a statement to that effect and provide a copy of that 10 statement to the affected employee. 11 Section 9. Civil action. 12 (a) Cause of action.--An employee whose e-mail communication 13 has been monitored in violation of this section may bring a 14 civil action to recover from the employer or entity which 15 engaged in the violation: 16 (1) Such preliminary and other equitable or declaratory 17 relief as may be appropriate and attorney fees and other 18 litigation costs reasonably incurred. 19 (2) The actual damages suffered by the plaintiff and any 20 profits made by the violator as a result of the violation as 21 well as punitive damages, but in no case less than the sum of 22 $2,000. 23 (b) Limitation.--A civil action under this section may not 24 be commenced later than one year after the date upon which the 25 claimant first discovered or had a reasonable opportunity to 26 discover the violation. 27 Section 10. Applicability. 28 The provisions of this act shall not apply to a criminal 29 investigation. Any information obtained in the course of a 30 criminal investigation through the use of electronic monitoring 20050S0175B0166 - 6 -
1 may be used in a disciplinary proceeding against an employee. 2 Section 11. Effective date. 3 This act shall take effect in 90 days. A7L12RLE/20050S0175B0166 - 7 -