HR 5228
110th CONGRESS
2d Session
H. R. 5228
To protect employees from invasion of privacy by employers by
prohibiting video and audio monitoring of employees when in an area where
it is reasonable to expect employees to change clothing.
IN THE HOUSE OF REPRESENTATIVES
February 6, 2008
Mr. ANDREWS (for himself and Mr. PETRI) introduced the following bill;
which was referred to the Committee on Education and Labor
A BILL
To protect employees from invasion of privacy by employers by
prohibiting video and audio monitoring of employees when in an area where
it is reasonable to expect employees to change clothing.
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 Changing Room Privacy Act'.
SEC. 2. PROHIBITION AGAINST VIDEO OR AUDIO MONITORING OF EMPLOYEES IN
CERTAIN EMPLOYMENT LOCATIONS.
(a) In General- 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.
(b) Use of Monitoring Results- An employer may not use the results of
video or audio monitoring conducted in violation of this Act for any purpose,
including any employee discipline. An employer shall immediately destroy
all copies of any recording determined to have been made in violation
of this Act.
(c) Non-Retaliation- An employer may not discharge, discipline, or discriminate
in any manner against an employee because the employee has--
(1) filed any complaint or instituted or caused to be instituted any
proceeding under this Act; or
(2) testified or is about to testify in any proceeding under this Act.
(d) Limitation- Nothing in this Act shall prohibit any video monitoring
or audio monitoring conducted by a law enforcement agency as part of a
criminal investigation and pursuant to a validly issued warrant.
SEC. 3. ENFORCEMENT ACTION BY SECRETARY OF LABOR.
(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
$18,000 for each violation.
(b) Written Notice and Opportunity for Hearing- The Secretary of Labor
shall assess a civil money 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 money 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 120-day
period beginning on the date the order was issued.
(f) Failure To Pay- The Secretary of Labor may recover, in an action brought
in any appropriate district court of the United States, the amount of
a civil money 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 money 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; or
In any action or proceeding under this section, the court, in its discretion,
may allow the prevailing party a reasonable attorney's fee (including
expert fees) as part of the costs.
(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.
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.
(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 interstate commerce.
(4) VIDEO MONITORING- The term `video monitoring' means the videotaping,
photographing, filming, or recording by any electronic means of an employee,
or installing a device that videotapes, photographs, films, or otherwise
records visual images.
(5) SECRETARY- The term `Secretary' means the Secretary of Labor.
(6) 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
