1Providing for notice to employees of electronic monitoring by
2employers of network and information technology resources;
3establishing a cause of action; and imposing civil penalties.

4The General Assembly of the Commonwealth of Pennsylvania
5hereby enacts as follows:

6Section 1. Short title.

7This act shall be known and may be cited as the Workplace
8Electronic Message Monitoring Act.

9Section 2. Legislative findings and intent.

10(a) Findings.--The General Assembly hereby finds and takes
11notice that workplace electronic communication, specifically e-
12mail messaging, has become a pervasive and standard form of
13communication for most individuals, rivaling the use of
14telephonic communications. Because of such widespread and
15routine usage, e-mail messaging has become an accepted means
16through which individuals communicate business-related or
17nonbusiness-related information, including private or personal

1information. As a result, the General Assembly recognizes that,
2unless explicitly notified to the contrary, users of e-mail have
3a reasonable and recognized expectation of privacy to their
4electronic communication. Furthermore, the General Assembly also
5recognizes that employers have a legitimate interest in ensuring
6that their e-mail messaging systems are not being used in a
7manner that is prohibited by law, constitutes discriminatory
8conduct toward others or exposes the employer to civil
9liability.

10(b) Intent.--It is the intent of the General Assembly to
11balance the expectations of privacy of employees who may use
12workplace e-mail messaging systems to communicate personal or
13private information with the legitimate needs of employers to
14prevent misuse or abuse of their e-mail systems. To this end,
15the General Assembly hereby enacts this act in an effort to
16preserve the functionality of e-mail as a business tool for
17increasing productivity and efficiency in the workplace and to
18restore a higher sense of dignity to this growing form of
19electronic communication by prohibiting employer monitoring of
20e-mail communications unless employees have been clearly
21notified of the possibility of such monitoring.

22Section 3. Definitions.

23The following words and phrases when used in this act shall
24have the meanings given to them in this section unless the
25context clearly indicates otherwise:

26"Electronic communication." A transfer of signs, signals, 
27writing, images, sounds, data or intelligence of any nature 
28transmitted in whole or in part by a wire, radio, 
29electromagnetic, photoelectronic or photo-optical system.

30"Electronic monitoring." The use of an electronic device to 

1record, check, track, review or otherwise inspect e-mail or 
2electronic communication.

3"E-mail." A message or messages sent or received 
4electronically over a computer network, including any and all 
5graphics and audio information and other electronic file 
6attachments.

7"Employee." A person who performs services for an employer, 
8whether as an employee or otherwise, and has authorized access 
9to the employer's e-mail and other electronic communications 
10equipment and computer system, including computer equipment, 
11network, Internet access, data bases, electronic files, 
12software, telephone, radio or other types of information 
13technology.

14"Employer." A person, firm or corporation, including the 
15Commonwealth and any political subdivision of the Commonwealth, 
16that has employees.

17Section 4. Notice of monitoring.

18(a) General rule.--Except as provided in section 5, an
19employer who intentionally reads, listens to or otherwise
20engages in electronic monitoring, or otherwise monitors the
21computer usage of an employee, without first having provided the
22employee with notice meeting the requirements of subsection (b),
23shall be liable to the employee for relief as provided under
24section 9.

25(b) Form of notice.--A notice under this section shall be in
26a clear and conspicuous written form distributed to and
27acknowledged by all employees, written or electronically, in a
28manner reasonably calculated to provide actual notice. The form
29of notice required by this section may but need not be in the
30following form:

1(Name of Company)

2(Address of Company)

3(Telephone Number of Company)

4This notice is to inform you of (name of company)'s
5(hereinafter the "company") intention to inspect, review or
6retain electronic communications created, sent, displayed,
7received or stored on or over its information technology,
8network, Internet access, computer equipment, data bases,
9files and software (collectively the "computer system").
10Company may monitor at any time, without further notice to
11you, electronic communications created, sent, displayed,
12received or stored on or over its computer system, whether
13related to the company's business or not. EMPLOYEES SHOULD
14NOT HAVE AN EXPECTATION OF PRIVACY IN ANYTHING THEY CREATE,
15STORE, SEND, RECEIVE OR DISPLAY ON OR OVER THE COMPANY'S
16COMPUTER SYSTEM. The company may use human or automated means
17to monitor the contents or use of its computer system.

18Employee Acknowledgment

19I have received, read and understand the foregoing notice
20regarding monitoring electronic communications.

21Employee's Signature:

22(c) Prior notification.--Where an employer has previously
23provided notice of electronic monitoring prior to the effective
24date of this act, in a manner substantially similar to the form
25provided for in subsection (b), the employer need not provide
26notice of monitoring again.

27(d) Additional notice.--This section sets forth minimum
28notice requirements for employers. Nothing in this section shall
29preclude an employer from expressly providing employees
30additional notice of the employer's monitoring activities.

1Section 5. Exception to notice requirement.

2An employer may conduct electronic monitoring without the
3notice required under section 4 if the employer has reasonable
4grounds to believe that a particular employee of the employer is
5engaged in conduct that:

6(1) violates the legal rights of the employer or another
7person;

8(2) involves significant harm to the employer or such
9other person; and

10(3) the electronic monitoring is reasonably calculated
11to lead to evidence of such conduct.

12Section 6. Construction.

13Notice set forth in accordance with section 4 shall not be
14construed to impose an obligation upon an employer to actually
15monitor e-mail or electronic communications or to constitute the
16employer's constructive notice of any activity occurring on or
17over its computer network and other computer resources or
18information technology.

19Section 7. Investigation.

20Nothing in this act shall be construed to prohibit an
21employer who chooses not to monitor his employees from
22investigating an employee's conduct as long as the employer is
23in compliance with section 5.

24Section 8. Verification.

25Upon distributing notice to employees in accordance with
26section 4, the employer shall require every affected employee to
27sign or electronically verify that the employee has received,
28read and understood the notice. If an affected employee to whom
29notice has been provided declines to sign or electronically
30verify that the employee has received, read and understood the

1notice, the employer may comply with the requirements of this
2section by having the person who provided the notice to the
3affected employee sign and retain a statement to that effect and
4provide a copy of that statement to the affected employee.

5Section 9. Civil action.

6(a) Cause of action.--An employee whose e-mail communication
7has been monitored in violation of this section may bring a
8civil action to recover from the employer or entity which
9engaged in the violation:

10(1) Such preliminary and other equitable or declaratory
11relief as may be appropriate and attorney fees and other
12litigation costs reasonably incurred.

13(2) The actual damages suffered by the plaintiff and any
14profits made by the violator as a result of the violation as
15well as punitive damages, but in no case less than the sum of
16$2,000.

17(b) Limitation.--A civil action under this section may not
18be commenced later than one year after the date upon which the
19claimant first discovered or had a reasonable opportunity to
20discover the violation.

21Section 10. Applicability.

22The provisions of this act shall not apply to a criminal
23investigation. Any information obtained in the course of a
24criminal investigation through the use of electronic monitoring
25may be used in a disciplinary proceeding against an employee.

26Section 11. Effective date.

27This act shall take effect in 90 days.