AB 64

Current law does not regulate employer monitoring of employee electronic mail

(e-mail) usage. This bill prohibits any employer, including the state, from

monitoring any e-mail message sent or received by an employee unless the employee

sends or receives the message through a computer owned by the employer and the

employer: 1) provides written notice to the employee of the employer's policy

regarding the monitoring of employee e-mail usage when the employee is hired and

not less than once each year after that; and 2) provides written notice to the employee

of any change in that policy not less than 30 days before the effective date of the

change in policy. The notice must include a statement of the purposes for which

employee e-mail messages are monitored and the frequency with which that

monitoring is conducted and a statement for the employee to sign acknowledging

that the employee has received and understands the notice.

The bill also prohibits an employer from monitoring any e-mail message sent

or received by an employee because the employee has exercised or is exercising, or

because the employer believes that the employee has exercised, is exercising, or may

exercise, his or her right to form, join, or assist a labor organization, to bargain

collectively, and to engage in lawful, concerted activities for the purpose of collective

bargaining or other mutual aid or protection. In addition, the bill provides that an

employee has a reasonable expectation of privacy in the content of any personal

e-mail message sent or received by the employee and prohibits an employer from

monitoring the content of such a message except as necessary to determine whether

the message is personal or work-related or to protect any trade secret or other

confidential business information of the employer.

The bill provides, however, that an employer is not prohibited from monitoring

the number or frequency of the personal e-mail messages sent or received by an

employee to ascertain the efficiency or productivity of the employee or from using any

electronic or other device to manage the e-mail messages coming into or going out

of the employer's computerized communication system solely for the purpose of

system maintenance, security, or protection and not for the purpose of monitoring the

e-mail messages sent or received by any particular employee.

Finally, under the bill, an employee whose e-mail messages are monitored in

violation of the bill or who is discharged or discriminated against for opposing a

practice prohibited under the bill, filing a complaint or attempting to enforce any

right granted under the bill, or testifying or assisting in any action or proceeding to

enforce any right under the bill may file a complaint with the Department of

Workforce Development (DWD). DWD must process the complaint in the same

manner as employment discrimination complaints are processed under current law,

which processing may include the ordering of back pay, reinstatement, or

compensation in lieu of reinstatement.