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Electronic Monitoring of Employees
Latest CMTA position: OPPOSE
Prohibits electronic monitoring of employees without prior notice
CMTA's Position: Oppose Veto request to Gov. Schwarzenegger August 25, 2004 Dear Governor Schwarzenegger: The California Manufacturers and Technology Association (CMTA) is opposed to SB 1841 (Bowen) and request that you veto the bill. The bill would prohibit employers from engaging in electronic monitoring of employees use of company computers and other equipment unless employees were first provided with special notice. SB 1841 would mandate a notice that is clear and conspicuous to each employee either electronically or in writing in a manner reasonably calculated to provide actual notice. The notice would have to contain the form of communication or other activity that will be monitored. The bill does not narrowly define "activity", so presumably any activity that an employer monitors is covered. You would also have to identify the kinds of information that will be obtained through monitoring, including any activities, communications, or computer usage not related to the employer's business. This means that in order to give a clear and conspicuous notice to each employee under the bill, the employer would have to prepare special electronic monitoring notices for employees and implement new procedures to maintain and keep up with the notice in order to comply with the bill. The notice would have to indicate every kind of information that will be obtained through the monitoring, include every form of communications and all computer usage not related to the employers' business that are likely to be monitored. Failure to properly notice the employee would result in a violation of the employee rights and the employer would be guilty of a misdemeanor. Under current law many employers inform employees who use company electronic equipment by posting notices on or near the equipment that is specifically rejected by the bill. Company handbooks are also used by many employers and while not specifically rejected by the bill, the notice requires such specificity on how equipment may be used and what communications may be monitored is so extreme that it is practically impossible and highly unlikely that any employee handbook will suffice. CMTA strongly opposes the bill because it would create a major administrative burden on employers by requiring special procedures to be set up to inform employees who use employers' electronic devices that would be overly burdensome and expensive. A failure to properly notice every requirement of this bill would leave employers unprotected from employee abuse of the electronic equipment and may even subject employers to civil law suits. Employers have a right and an obligation to protect the company and police the use of their equipment to insure that it is not misused for otherwise unauthorized or illegal activities. According to a recent CBSMarketWatch report, fully 20 percent of companies had e-mail records subpoenaed for lawsuits or regulatory investigations in 2003 and 13 percent of them have faced lawsuits based on employee e-mail messages. "If a workplace lawsuit is filed, you can pretty much count on the fact that e-mail is going to be subpoenaed, and now instant messages are starting to be subpoenaed," Nancy Flynn, executive director of the ePolicy Institute, training and consulting firm based in Columbus, Ohio, told CBSMarketWatch. This is a particularly onerous requirement for employers given that there is no dispute that the electronic devises belong to the company and is intended solely for work. 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, and absent permission from the employer, it is the employee who would ordinarily be subject to sanction for the unauthorized use of equipment for non-work related purposes. CMTA is also concerned that the bill would set up a double standard of notice in the workplace that would become the "Camel nose under the tent". We believe that if SB 1841 becomes law, employers would very soon be required to develop similar notices for every form of activity, equipment, equipment usage and work rules that are monitored by the company. SB 1841 is very similar to three other bills (SB 147, SB 1016 & SB 1822) authored by Senator Bowen during the last three legislative sessions that were vetoed by Governor Gray Davis. This bill poses the same onerous requirements on employers as the three previous bills without any regard for the negative impact on employers. CMTA opposes the bill for the above reasons and requests that you Veto the measure. Sincerely, Willie Washington Director, Human Resources CMTA staff information CMTA lobbyist: Willie Washington |
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Aug. 23 Senate Floor Aanestad NO Ashburn NO Cedillo YES Denham NO Ducheny YES Florez YES Hollingsworth NO Romero YES Torlakson YES Aug. 23 Assembly Floor Cox NO Dutton NO Kehoe YES Lowenthal YES Maldonado NO Simitian YES |