A recently proposed California law would prohibit employers from engaging in electronic monitoring of employees without first providing notice of this practice. A violation of this law could constitute a criminal misdemeanor and create civil liability. Furthermore, given that the developing case law under the federal Electronic Communications Privacy Act (ECPA) does not prohibit employer access to stored employee emails, this law would require California employers to provide notice before gaining such access.

Last week, the California State Senate approved Senate Bill 1841 (the bill), that is designed to add Section 436 to the California Labor Code. The bill now must be considered by the California Assembly.

The bill specifically provides that an employer who engages in electronic monitoring of an employee without first having provided notice is liable to the employee and is subject to a misdemeanor. An employer would also be required to provide notice to employees before implementing a material change in its electronic monitoring practice.

Electronic monitoring is defined as "the collection of individually identifiable information concerning employee activities or communications through the use of an electronic device including, but not limited to, a computer, telephone, wire, radio, camera, or electromagnetic, photo-electronic, or photo-optical system."

Sufficient notice for purposes of this law constitutes "clear and conspicuous notice to each employee if given to each employee either electronically or in writing, in a manner reasonably calculated to provide actual notice," if the notice sets forth "the form of communication, type of computer usage, or type of electronic device that will be monitored" and "the kinds of information that will be obtained through the monitoring, including whether communications or computer usage not related to the employer's business are likely to be monitored." The bill is plain that notice "by placing signs in the workplace does not constitute clear and conspicuous notice."

Notwithstanding the foregoing, the bill provides that an employer may conduct electronic monitoring without notice to an employee if the employer has "reasonable grounds" to believe that a specific employee is engaged in illegal activity and if such monitoring will produce evidence of the unlawful conduct and will be conducted pursuant to other applicable state and federal laws.

The bill provides that the rights it creates cannot be waived by contract or otherwise, unless the waiver is part of a written settlement to a pending action or complaint. Moreover, nothing in the bill may be construed to preempt, modify or amend any county or local law providing greater protection to employees.

The Privacy Rights Clearinghouse (PRC) has come out in support of the bill. The PRC has been most concerned about "secret" monitoring. The PRC believes that "workplace monitoring should be conducted with transparency so that employees are clear on what activities will be monitored."

The California Manufacturers and Technology Associations oppose the bill, arguing that it would "create a major administrative burden on employers by requiring special procedures to be set up to inform employees." They stress that "this is a particularly onerous requirement for employers given that there is no dispute that the electronic devices belong to the company and [are] solely intended for work."

Time will tell whether the bill actually will become law in California.

Eric J. Sinrod is a partner in the San Francisco office of Duane Morris (www.duanemorris.com), where he focuses on litigation matters of various types, including information technology disputes. His column appears Wednesdays at USATODAY.com. His Web site is www.sinrodlaw.com, and he can be reached at ejsinrod@duanemorris.com. To receive a weekly e-mail link to Mr. Sinrod's columns, please send an e-mail with the word Subscribe in the Subject line to ejsinrod@duanemorris.com.