To protect employees from invasion of privacy by employers by prohibiting certain video monitoring and audio monitoring of employees by their employers, and for other purposes.

September 29, 2004

Mr. PETRI (for himself and Mr. ANDREWS) introduced the following bill; which was referred to the Committee on Education and the Workforce, and in addition to the Committee on Government Reform, for a period to be subsequently determined by the Speaker, in each case for consideration of such provisions as fall within the jurisdiction of the committee concerned

To protect employees from invasion of privacy by employers by prohibiting certain video monitoring and audio monitoring of employees by their employers, and for other purposes.

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

This Act may be cited as the `Employee Freedom from Invasion of Privacy Act'.

SEC. 2. PROHIBITION AGAINST VIDEO OR AUDIO MONITORING OF EMPLOYEES IN CERTAIN EMPLOYMENT LOCATIONS.

An employer may not engage in video monitoring or audio monitoring of an employee of the employer when the employee is in a restroom facility, dressing room, or any other area in which it is reasonable to expect employees of the employer to change clothing.

SEC. 3. ENFORCEMENT ACTION BY SECRETARY.

(a) In General- Any employer who violates section 2 shall be liable to the United States for a civil money penalty in an amount not to exceed $10,000 for each violation, except that, if the violation is knowing, the penalty for the violation may be up to $25,000.

(b) Written Notice and Opportunity for Hearing- The Secretary of Labor shall assess a civil penalty under subsection (a) by an order made on the record after opportunity for a hearing provided in accordance with section 554 of title 5, United States Code. In connection with the hearing, the Secretary may issue subpoenas requiring the attendance and testimony of witnesses and the production of evidence that relates to the subject matter of the hearing.

(c) Determination of Amount of Civil Money Penalty- In determining the amount of a civil money penalty under subsection (a), the Secretary shall take into account--

(1) the nature, circumstances, extent, and gravity of the violation or violations; and

(2) with respect to the violator, the ability to pay, effect on ability to continue to do business, any history of prior violations, the degree of culpability, and such other matters as justice may require.

(d) Modification of Civil Money Penalty- The Secretary may compromise, modify, or remit, with or without conditions, any civil money penalty assessed under subsection (a). The amount of such penalty, when finally determined, or the amount agreed upon in compromise, may be deducted from any sums owing by the United States to the employer.

(e) Judicial Review- An employer who requested, in accordance with section 554 of title 5, United States Code, a hearing respecting the assessment of a civil penalty under this subsection, and who is aggrieved by the order assessing the penalty may file a petition for judicial review of the order with the United States Court of Appeals for the District of Columbia Circuit or for any other circuit in which the employer resides or transacts business. Such a petition may only be filed within the 60-day period beginning on the date the order was issued.

(f) Failure to Pay- The Attorney General may recover, in an action brought in any appropriate district court of the United States, the amount of a civil penalty assessed under this subsection against an employer who fails to pay the penalty--

(1) after the order making the assessment becomes final, and if such employer does not file a petition for judicial review of the order in accordance with subsection (e); or

(2) after a court in an action brought under subsection (e) has entered a final judgment in favor of the Secretary.

(g) No Review of Penalty- In an action brought under subsection (f), the validity, amount, and appropriateness of the civil penalty shall not be subject to review.

(h) Injunctive Relief- The Secretary may commence, in any court of competent jurisdiction, a civil action for the purpose of obtaining temporary or permanent injunctive relief with respect to preventing a violation of section 2.

SEC. 4. CIVIL CAUSE OF ACTION BY AGGRIEVED EMPLOYEE.

(a) In General- An employee who is aggrieved as a result of a violation of section 2 by the employer of such employee may commence, in any court of competent jurisdiction, a civil action against the employer to obtain appropriate relief, including--

(1) an injunction to enjoin the employer from further engaging in the violation or from committing any further violation, as appropriate;

(2) damages not to exceed $25,000 if the violation is knowing; or

(3) both such remedies.

(b) Commencement of Proceedings- An employee referred to in subsection (a) may not commence proceedings under such subsection against an employer of the employee after the expiration of the 7-year period beginning on the later of the following:

(1) The date on which the employer allegedly engaged in a violation of section 2.

(2) The date on which the employee should have been aware of an alleged violation of section 2 by the employer.

(c) Attorney's Fees and Costs- In any civil action referred to in subsection (a), the prevailing party may obtain appropriate relief, including reasonable costs, and attorney's and expert witness fees.

SEC. 5. EFFECT ON STATE LAWS AND COLLECTIVE BARGAINING AGREEMENTS.

(a) State Laws- This Act does not annul, alter, or affect in any manner the meaning, scope, or applicability of the laws of any State or political subdivision of any State, except to the extent such laws are inconsistent with this Act, and then only to the extent of the inconsistency. A law is not inconsistent with this Act if the law affords greater protection to an employee than the protection provided under this Act.

(b) Collective Bargaining Agreements- This Act does not annul, alter, or affect in any manner the meaning, scope, or applicability of any collective bargaining agreements, except to the extent that such agreements are inconsistent with this Act, and then only to the extent of the inconsistency. An agreement is not inconsistent with this Act if the agreement affords greater protection to an employee than the protection provided under this Act.

SEC. 6. DEFINITIONS.

In this Act:

(1) AUDIO MONITORING- The term `audio monitoring' means the listening to, collecting, or recording of sounds of an employee by means of audio equipment or other method.

(2) EMPLOYEE- The term `employee' means any person who is employed by an employer or who was employed by an employer at the time of a violation that was allegedly committed by that employer. Such term includes leased or temporary employees and an employee who is under contract to perform work for an employer.

(3) EMPLOYER- The term `employer' means any person or entity engaged in commerce or in an industry or activity affecting commerce. Such term includes a public agency.

(4) PUBLIC AGENCY- The term `public agency' means--

(A) the Government of the United States;

(B) the government of a State or political subdivision thereof;

(C) any agency of the United States (including the United States Postal Service and Postal Rate Commission);

(D) any agency of a State, or a political subdivision of a State; or

(E) any interstate governmental agency.

(5) VIDEO MONITORING- The term `video monitoring' means the videotaping, photographing, filming, or recording by any electronic means of an employee.

(6) SECRETARY- The term `Secretary' means the Secretary of Labor.

(7) STATE- The term `State' means a State of the United States, the District of Columbia, the Commonwealth of Puerto Rico, or a territory or possession of the United States.

SEC. 7. EFFECTIVE DATE.

This Act takes effect 60 days after the date of the enactment of this Act.

END