Massachusetts 2023-2024 Regular Session

Massachusetts Senate Bill S1228 Compare Versions

Only one version of the bill is available at this time.

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2	2	SENATE DOCKET, NO. 511 FILED ON: 1/17/2023
3	3	SENATE . . . . . . . . . . . . . . No. 1228
4	4	The Commonwealth of Massachusetts
5	5	_________________
6	6	PRESENTED BY:
7	7	Walter F. Timilty
8	8	_________________
9	9	To the Honorable Senate and House of Representatives of the Commonwealth of Massachusetts in General
10	10	Court assembled:
11	11	The undersigned legislators and/or citizens respectfully petition for the adoption of the accompanying bill:
12	12	An Act relative to consumers and workers.
13	13	_______________
14	14	PETITION OF:
15	15	NAME:DISTRICT/ADDRESS :Walter F. TimiltyNorfolk, Plymouth and Bristol 1 of 13
16	16	SENATE DOCKET, NO. 511 FILED ON: 1/17/2023
17	17	SENATE . . . . . . . . . . . . . . No. 1228
18	18	By Mr. Timilty, a petition (accompanied by bill, Senate, No. 1228) of Walter F. Timilty for
19	19	legislation relative to consumers and workers. Labor and Workforce Development.
20	20	[SIMILAR MATTER FILED IN PREVIOUS SESSION
21	21	SEE SENATE, NO. 1254 OF 2021-2022.]
22	22	The Commonwealth of Massachusetts
23	23	_______________
24	24	In the One Hundred and Ninety-Third General Court
25	25	(2023-2024)
26	26	_______________
27	27	An Act relative to consumers and workers.
28	28	Be it enacted by the Senate and House of Representatives in General Court assembled, and by the authority
29	29	of the same, as follows:
30	30	1 SECTION 1. Definitions
31	31	2 As used in the following sections, the following words have the following meanings:-
32	32	3 “Electronic monitoring”, the collection of information concerning employee activities or
33	33	4communications by any means other than direct observation, including the use of a computer,
34	34	5telephone, wire, radio, camera, electromagnetic, photo-electronic or photo-optical system.
35	35	6 “Employee”, any person who performs services for an employer in exchange for financial
36	36	7remuneration, including part time, leased, or former employees. 2 of 13
37	37	8 “Employer”, any person, partnership, corporation or other organization engaged in
38	38	9commerce, or any other person or organization, which obtains the services of individuals in
39	39	10exchange for financial remuneration.
40	40	11 “Customer”, a person who is encouraged or solicited by the employer to utilize or
41	41	12purchase services and products of the employer.
42	42	13 “Consumer”, a person who is encouraged or solicited by the employer to utilize or
43	43	14purchase services and products of the employer.
44	44	15 “Personal data”, any information concerning an employee which, because of name,
45	45	16identifying number, mark or description, can be readily associated with a particular individual,
46	46	17and such term includes information contained in printouts, forms, or written analyses or
47	47	18evaluations.
48	48	19 “Telephone service observation”, the practice of listening to or recording telephone calls
49	49	20being made by, or received by, an employee in order to monitor the quality of service provided
50	50	21by the employee.
51	51	22 “Director”, the Director of the Office of Consumer Affairs and Business Regulation.
52	52	23 SECTION 2. Information Which May Be Collected
53	53	24 An employer may use electronic surveillance to collect any information so long as:
54	54	25 (1) The information is collected at the employer’s premises and
55	55	26 (2) The information is confined to the employee’s work. 3 of 13
56	56	27 (3) Exception — Electronic monitoring, including security cameras, whose sole purpose
57	57	28and principal effect is to collect information permitted by this act is not prohibited by section (ii)
58	58	29because it collects some information about employees which is not confined to the employee’s
59	59	30work.
60	60	31 SECTION 3. General Notice
61	61	32 (a) Each employer who engages in any type of electronic monitoring shall provide prior
62	62	33written notice to all employees, customers or consumers who may be affected.
63	63	34 This notice shall provide the following:
64	64	35 (i) The information which is to be collected;
65	65	36 (ii) The means by which this information is to be collected;
66	66	37 (iii) The times at which the monitoring is to occur;
67	67	38 (iv) The location of the monitoring equipment;
68	68	39 (v) The use to be made of the information which is collected;
69	69	40 (vi) The identity of the employees who will be monitored.
70	70	41 (b) Where an employer’s monitoring program will include the employer’s customers or
71	71	42members of the public, the employer shall provide notice to those affected. This notice may take
72	72	43any form that is reasonably calculated to reach the affected parties.
73	73	44 (c) Exception — Where an employer has reasonable grounds to believe that the
74	74	45employees are engaged in conduct which violates the legal rights of the employer or the 4 of 13
75	75	46employer’s employees, customers or consumers and involves significant harm to that party, and
76	76	47that electronic monitoring will produce evidence of this misconduct, the employer may conduct
77	77	48monitoring without giving notice as provided below.
78	78	49 (i) Special Electronic Monitoring — Subject to paragraph (ii), an employer, other than
79	79	50the State or political subdivision thereof, who has a reasonable suspicion that an employer’s
80	80	51employee, customer or consumer is engaged in or is about to engage in conduct which:
81	81	52 (A) Violates criminal or civil law or constitutes willful gross misconduct and
82	82	53 (B) Has a significant adverse effect involving economic loss or injury to the employer,
83	83	54the employer’s employees or the employer’s customers or consumers.
84	84	55 The employer may engage, on the employer’s worksite, in electronic monitoring of such
85	85	56employee or of an area in which the actions described in sub-paragraphs (A) and (B) occur
86	86	57without providing the notice required by section 3(a), 4(a) or 4(b).
87	87	58 (ii) Statement — Before engaging in the electronic monitoring described in paragraph (i),
88	88	59an employer shall execute a notarized statement setting forth:
89	89	60 (A) With particularity, the conduct that is being electronically monitored and the basis for
90	90	61the electronic monitoring;
91	91	62 (B) An identification of the specific economic loss or injury to the employer or the
92	92	63employer’s employees resulting from such conduct or the injury to the interests of such employer
93	93	64or employer’s employees. 5 of 13
94	94	65 The employer shall sign the statement and retain it for three years from the date the
95	95	66electronic monitoring began or until judgment is rendered in an action brought under section
96	96	6712(c) by an employee affected by such electronic monitoring, whichever is later.
97	97	68 SECTION 4. Director’s Notice
98	98	69 (a) In general, the Director shall prepare, have printed and distribute to employers a
99	99	70notice that will inform employees, customers or consumers:
100	100	71 (i) That an employer engages in or may engage in electronic monitoring of employees
101	101	72and specifies the circumstances (including the electronic monitoring and exception described in
102	102	73section (c) under which an employee, customer and consumer is or is not entitled to additional
103	103	74notice under this section); and
104	104	75 (ii) Of the rights and protections provided to employees, customers or consumers by this
105	105	76Act.
106	106	77 (b) Posting of Notice — Each employer who engages in electronic monitoring shall post
107	107	78and maintain the notice required in paragraph 4(a) in conspicuous places on its premises where
108	108	79notices to employees, customers or consumers are customarily posted.
109	109	80 (c) Exception to Notice Requirement
110	110	81 (i) Special Electronic Monitoring — subject to paragraph (ii), an employer, other than the
111	111	82Federal Government or State or political subdivision thereof, who has a reasonable suspicion that
112	112	83an employer’s employee, customer or consumer is engaged in or is about to engage in conduct
113	113	84which:
114	114	85 (A) Violates criminal or civil law, or constitutes willful gross misconduct; and 6 of 13
115	115	86 (B) Has a significant adverse effect involving economic loss or injury to the employer or
116	116	87the employer’s employees, customers or consumers.
117	117	88 The employer may engage, on the employer’s worksite, in electronic monitoring of such
118	118	89employee, customer or consumer or of an area in which the actions described in subparagraphs
119	119	90(A) and (B) occur without providing the notice required by section 4(b) and 5 and without regard
120	120	91to sections, 9, 10(1) and 11.
121	121	92 (ii) Statement — Before engaging in the electronic monitoring described in paragraph (i),
122	122	93an employer shall execute a statement setting forth:
123	123	94 (A) With particularity, the conduct that is being electronically monitored and the basis for
124	124	95the electronic monitoring;
125	125	96 (B) An identification of the specific economic loss or injury to the business of the
126	126	97employer or the employer’s employees, customers or consumers resulting from such conduct or
127	127	98the injury to the interests of such employer or employer’s employees, customers or consumers.
128	128	99 The employer shall sign the statement and retain it for three years from the date the
129	129	100electronic monitoring began or until judgment is rendered in an action brought under section
130	130	10112(c) by an employee, customer or consumer affected by such electronic monitoring, whichever
131	131	102is later.
132	132	103 SECTION 5. Employer’s Specific Notice
133	133	104 Each employer shall provide to each employee, customer or consumer who will be
134	134	105electronically monitored, and the exclusive bargaining representative, if any, prior written notice
135	135	106describing the following regarding the electronic monitoring of such employees: 7 of 13
136	136	107 (1) The forms of electronic monitoring to be used.
137	137	108 (2) The personal data to be collected.
138	138	109 (3) The hours and days per calendar week that electronic monitoring will occur.
139	139	110 SECTION 6. Simultaneous Notice
140	140	111 (a) Employers who engage in random or periodic monitoring of employees’, customers’,
141	141	112or consumers’ communications, such as telephone service observation or monitoring of
142	142	113electronic mail, shall inform the affected employees of the specific events which are being
143	143	114monitored at the time the monitoring takes place.
144	144	115 (b) Exception — Employers who are engaged in a bona fide quality program is an
145	145	116employer program which meets the following requirements:
146	146	117 (i) The information collected relates to the performance of a specific defined task;
147	147	118 (ii) The employer has a written standard for the performance of this task;
148	148	119 (iii) The purpose of the program is to compare the performance of employees performing
149	149	120the task to the standard;
150	150	121 (iv) Information is collected on a reasonably equal basis regarding the performance of all
151	151	122employees performing the task;
152	152	123 (v) The affected employees are given feedback on the employer’s evaluation of their
153	153	124performance at a time when they can reasonably be expected to remember the events upon which
154	154	125their evaluation is based. 8 of 13
155	155	126 SECTION 7. Private Areas
156	156	127 No electronic monitoring shall take place in bathrooms, locker rooms, shower facilities,
157	157	128dressing areas, room rental, or other areas provided to customers or consumers or other similar
158	158	129private areas.
159	159	130 SECTION 8. Employee Review of Records
160	160	131 (a) In general, except as provided in subsection (6), each employer shall provide the
161	161	132employer’s employee (or the employee’s authorized agent) and the exclusive bargaining
162	162	133representative, if any, with a reasonable opportunity to review and, upon request, a copy of all
163	163	134personal data obtained or maintained by electronic monitoring of the employee.
164	164	135 (b) Exception — In general, except as provided in paragraph (i), an employer is not
165	165	136required to provide the employer’s employee (or the employee’s authorized agent) or the
166	166	137exclusive bargaining representative, if any, a reasonable opportunity to review data that are
167	167	138obtained by electronic monitoring.
168	168	139 (i) Review permitted, if:
169	169	140 (A) The investigation by an employer with respect to electronic monitoring that was
170	170	141conducted on the employer’s employee has been completed, or
171	171	142 (B) Disciplinary action has been initiated by an employer against the employer’s
172	172	143employee who was the subject of such electronic monitoring, whichever occurs first, such
173	173	144employer shall promptly provide such employee (or the employee’s authorized agent) and
174	174	145exclusive bargaining representative, if any, with a reasonable opportunity to review and, upon 9 of 13
175	175	146request, obtain a copy of the personal data and any interpretation of such data obtained from such
176	176	147electronic monitoring.
177	177	148 (i) Individual employee performance evaluation; or
178	178	149 (ii) Setting production quotas or work performance expectations, unless an employee is
179	179	150not working at a facility of an employer and transmits the employee’s work to the employer
180	180	151electronically, and such data is the only basis available to such employer for such purposes.
181	181	152 SECTION 9. Use of Data Collected by Electronic Monitoring
182	182	153 (a) Employer Actions — an employer shall not take any action against an employee on
183	183	154the basis of personal data obtained by electronic monitoring of such employee unless the
184	184	155employer has complied with all the requirements of this Act.
185	185	156 (b) Data shall not be used as sole basis for evaluation or production quotas — an
186	186	157employer shall not use quantitative data on an employee that is obtained by electronic monitoring
187	187	158and that records the amount of work performed by such employee within a specific time as the
188	188	159sole basis for —
189	189	160 SECTION 10. Disclosure
190	190	161 Information concerning employees which is collected through electronic monitoring may
191	191	162be disclosed only:
192	192	163 (1) With the prior written consent of the employee (such consent shall not be condition of
193	193	164employment); 10 of 13
194	194	165 (2) To officers, employees, or authorized agents of the employer who have a legitimate
195	195	166need for the information in performance of their duties;
196	196	167 (3) To appropriate law enforcement agencies.
197	197	168 SECTION 11. Non-Retaliation
198	198	169 No employer may discharge, discipline, or in any other manner discriminate against an
199	199	170employee because the employee has asserted his or her rights under this statute, assisted other
200	200	171employees in asserting their rights, reported violations of this statute, or participated in
201	201	172enforcement actions under this statute.
202	202	173 SECTION 12. Privacy Protections
203	203	174 (a) Work Related — No employer may intentionally collect personal data about an
204	204	175employee through electronic monitoring if the data are not confined to the employee’s work,
205	205	176unless the employee is a customer or consumer of the employer at the time of the electronic
206	206	177monitoring.
207	207	178 (b) Private Areas — No employer may engage in electronic monitoring in:
208	208	179 (i) Bathrooms;
209	209	180 (ii) Locker rooms;
210	210	181 (iii) Dressing rooms, or
211	211	182 (iv) Any other area where an employer customer or consumer has a reasonable
212	212	183expectation of privacy. 11 of 13
213	213	184 (c) First Amendment Rights — In general, an employer shall not intentionally engage in
214	214	185electronic monitoring of an employee when the employee is exercising First Amendment Rights,
215	215	186and an employer shall not intentionally use or disseminate personal data obtained by electronic
216	216	187monitoring of an employee when the employee is exercising First Amendment Rights.
217	217	188 (i) Exception — Electronic monitoring by an employer whose purpose and principal
218	218	189effect is to collect data about the work of an employee of the employer is not prohibited by
219	219	190paragraph (a) because it collects some incidental data concerning the exercise of an employee’s
220	220	191First Amendment Rights.
221	221	192 (d) Disclosure — An employer shall not disclose personal data obtained by electronic
222	222	193monitoring to any person or other employer or business entity except to (or with the prior written
223	223	194consent of) the individual employee to whom the data pertain, unless the disclosure would be:
224	224	195 (i) To officers and employees of the employer who have a legitimate need for the
225	225	196information in the performance of their duties;
226	226	197 (ii) To a law enforcement agency pursuant to a warrant issued under the Federal Rules of
227	227	198Criminal Procedure, an equivalent State warrant, a grand jury subpoena, or an administrative
228	228	199subpoena authorized by the Federal or State statute;
229	229	200 (iii) To the public if the data contain evidence of illegal conduct by a public official or
230	230	201have a direct and substantial effect on public health or safety; or
231	231	202 (iv) To the exclusive bargaining representative, if any.
232	232	203 (e) Issuance of Court Order — A court order for disclosure under subsection (b) or (c)
233	233	204shall issue only if the law enforcement agency demonstrates that there is reason to believe the 12 of 13
234	234	205contents of the data are relevant to a legitimate law enforcement inquiry. In the case of a State
235	235	206governmental authority, such a court order shall not issue if prohibited by the laws of such State.
236	236	207A court issuing an order pursuant to this section, on a motion made promptly by the service
237	237	208provider, may quash or modify such order, if the data requested are unusually voluminous in
238	238	209nature or compliance with such order would cause an undue burden on the employer.
239	239	210 SECTION 13. Enforcement
240	240	211 (a) Administrative — The Director shall have the authority to investigate alleged
241	241	212violations of this act. Any employer who is found to have violated this act shall be fined an
242	242	213amount not to exceed $5,000.00.
243	243	214 (b) Private Right of Action —Any person whose rights under this act have been abridged
244	244	215may file a civil action. Any employer that violates the provisions of this act shall be liable to the
245	245	216person aggrieved for special and general damages together with attorney’s fees and costs.
246	246	217 (c) Injunctive Relief — Any employer that commits, or proposes to commit, an act in
247	247	218violation of any provision of this act may be enjoined therefrom by any court of competent
248	248	219jurisdiction.
249	249	220 SECTION 14. Waiver of Rights
250	250	221 The rights provided by this act may not be waived by contract or otherwise, unless such
251	251	222waiver is part of a written settlement to a pending action or complaint.
252	252	223 SECTION 15. Application 13 of 13
253	253	224 (a) Law Enforcement — This Act shall not apply to electronic monitoring administered
254	254	225by law enforcement agencies as may otherwise be lawfully permitted under criminal
255	255	226investigations.
256	256	227 (b) Third Party — Monitoring for another person — A person who engages in electronic
257	257	228monitoring may not perform electronic monitoring for another person unless the requirements of
258	258	229this Act are complied with.
259	259	230 SECTION 16. Regulations
260	260	231 The Director shall, within six months after the date of the enactment of this Act, issue
261	261	232regulations to carry out this Act.