Legislature(1999 - 2000)
04/07/2000 03:25 PM House L&C
| Audio | Topic |
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
HOUSE LABOR AND COMMERCE STANDING COMMITTEE
April 7, 2000
3:25 p.m.
MEMBERS PRESENT
Representative Norman Rokeberg, Chairman
Representative Andrew Halcro, Vice Chairman
Representative Lisa Murkowski
Representative John Harris
Representative Sharon Cissna
Representative Jerry Sanders
MEMBERS ABSENT
Representative Tom Brice
COMMITTEE CALENDAR
HOUSE BILL NO. 278
"An Act relating to privacy, to private genetic information, to the
rights of employees related to electronic monitoring by employers,
and to certain consumer information; and amending Rule 26, Alaska
Rules of Civil Procedure."
- HEARD AND HELD
PREVIOUS ACTION
BILL: HB 278
SHORT TITLE: PRIVACY:DNA/EMPLOYEE MONITORING/CONSUMERS
Jrn-Date Jrn-Page Action
1/10/00 1892 (H) PREFILE RELEASED 1/7/00
1/10/00 1892 (H) READ THE FIRST TIME - REFERRALS
1/10/00 1892 (H) L&C, JUD, FIN
1/10/00 1892 (H) REFERRED TO LABOR & COMMERCE
2/02/00 2076 (H) COSPONSOR(S): DYSON
4/07/00 (H) L&C AT 3:15 PM CAPITOL 17
WITNESS REGISTER
REPRESENTATIVE ERIC CROFT
Alaska State Legislature
Capitol Building, Room 400
Juneau, Alaska 99801
POSITION STATEMENT: Testified as the sponsor of HB 278.
PAM LaBOLLE, President
Alaska State Chamber of Commerce
217 Second Street
Juneau, Alaska 99801
POSITION STATEMENT: Expressed concern with HB 278.
ACTION NARRATIVE
TAPE 00-45, SIDE A
Number 0001
CHAIRMAN NORMAN ROKEBERG called the House Labor and Commerce
Standing Committee meeting to order at 3:25 p.m. Members present
at the call to order were Representatives Rokeberg, Murkowski,
Harris and Cissna. Representatives Halcro and Sanders arrived as
the meeting was in progress.
HB 278-PRIVACY:DNA/EMPLOYEE MONITORING/CONSUMERS
CHAIRMAN ROKEBERG announced the first order of business is HOUSE
BILL NO. 278, "An Act relating to privacy, to private genetic
information, to the rights of employees related to electronic
monitoring by employers, and to certain consumer information; and
amending Rule 26, Alaska Rules of Civil Procedure."
REPRESENTATIVE ERIC CROFT, Alaska State Legislature, came forward
to testify as the sponsor of HB 278.
CHAIRMAN ROKEBERG asked Representative Croft if he would like the
committee to adopt HB 278, Version I.
REPRESENTATIVE CROFT explained that, although Version I is titled
a sponsor substitute, it is actually a committee substitute (CS).
Number 0099
REPRESENTATIVE MURKOWSKI made a motion to adopt the proposed CS,
LS1229\I, for HB 278. There being no objection, Version I was
adopted as a working draft.
REPRESENTATIVE CROFT explained that although this is the first
committee of referral for HB 278, there are many versions of the
bill because he has tried to work with government agencies and
individuals who would be affected by the bill. He further
explained that originally he had tried to address three areas of
Alaska's privacy concerns: the use and distribution of DNA
[deoxyribonucleic acid] samples as well as the question of
ownership of DNA; the restrictions on and protections for privacy
in the work place, employee monitoring; and the consumer discount
cards and what the information obtained from those cards can be
used for. However, Version I doesn't include the DNA section of
the [original] bill because it is simply an area of such emerging
technology that has federal and preemption issues. He believes
that [DNA collection and use] is an area that requires much more
study than he was able to give it at this time. Therefore, HB 278
only includes the other two major areas regarding employee
monitoring and consumer discount cards.
REPRESENTATIVE CROFT pointed out that both of the two issues
remaining in the bill take as their touchstone, notice and
permission. He informed the committee that he tried to say or
specify, only in a restricted manner [and] only in limited areas,
what one can and cannot do either in regard to employee monitoring
or discount cards. He said, "It is a piece of legislation that
takes as its touchstone, tell them what you're doing and make it a
openly, negotiated and discussed item, and then we trust the
marketplace, if you will, to figure out the proper limits." In
regard to employee monitoring, [an employer] may not monitor an
employee without giving the employee notice of that monitoring. He
informed the committee that in discussions with the members of the
information technology group, the people in state government who
monitor e-mail and other electronics, they say that they already
[inform employees of the monitoring that takes place]. He
indicated that most companies already [inform employees of the
monitoring that takes place] and thus an employee knows what to
expect. He pointed out that everyone has been on hold and heard,
"Your calls may be monitored for your protection." Whether this
monitoring is truly for [the consumer's] protection or not, at
least [the consumer/caller] is aware of the situation. Therefore,
informing the employee and the consumer [of the monitoring]
generally satisfies the statute. However, [the bill prohibits]
monitoring an employee in the bathroom or changing area. This is
one of the few areas where [that the bill] sets a bar; "but,
mainly, in both of those areas, get their permission and then
whatever you have agreed to do contractually is up to you." In
regard to discount cards, [a business] can't distribute information
gained from a discount card from, say, grocery stores without [the
consumer's] permission.
REPRESENTATIVE CROFT concluded with some general thoughts about the
right to privacy. He pointed out that Alaska is one of the few
states that has an explicit right to privacy protected in its
constitution. The origin of the right to privacy is fascinating
and like most great Alaska stories, it starts in a bar. In this
case, Senator Terry Miller and future Representative Fred Brown met
in Tommy's Elbow Room in Fairbanks to discuss this issue. [From
that discussion,] they proposed and introduced [the right to
privacy] in the winter of '71/'72. [The measure,] when put before
the people, passed in '72 [and] was added to the state's
constitution; over 86 percent of the [population] voted in favor of
adopting that as part of the state's constitution. He pointed out
that "unlike most constitutional provisions that tell you what you
cannot do ... this says, The right of the people to privacy is
recognized and shall not be infringed. The legislature shall
implement this section.'" He surmised that the people and the
drafters recognized that privacy was not a right one could protect
in the negative but rather a right that had to be asserted and it
also had to be asserted who was going to protect that right for
everyone. Therefore, a positive statement, "The legislature shall
implement this section." was necessary. Unfortunately,
Representative Croft didn't believe [the legislature has
implemented this right]. He pointed out that there was never a
1974 omnibus privacy act to follow up on the constitution nor was
there a 1978, 1982 or 1990 update to the privacy statute.
Therefore, if one looks under "privacy" in the constitution, one
will see a lot of case law, but very few cites from statutes as
authority. He reiterated the need for the legislature to take
steps toward implementing this provision. However, he didn't
claim that HB 278 is a complete answer to that.
REPRESENTATIVE CROFT remarked that privacy is not protected simply
by putting it in the constitution. If [the legislature] does not
act, then it is left to the judiciary. He noted that some
legislators complain about judicial activism in that the judiciary
has stepped into areas that it shouldn't, which may be a fair
criticism in some cases. However, [with privacy] he didn't believe
it's fair [to criticize the judiciary] when, despite a
constitutional mandate, [the legislature] hasn't stepped in and
cited appropriate parameters in this area. Representative Croft
believed that this is a first step and indicated that the
legislature has an obligation to discuss the privacy rights of the
people of the state of Alaska.
Number 0679
REPRESENTATIVE MURKOWSKI wondered how this ties in with the banking
industry. She pointed out that banks want to make sure that they
have some means of identifying a bank robber who's coming in.
Therefore, the cameras in banks monitor the bank 24 hours a day.
In addition to providing security for the bank, the cameras
[monitor employees] to make sure that someone doesn't, say, slip
something from the drawer into their pocket. Having worked in a
bank, Representative Murkowski knows that [bank employees] sign off
on certain things and know that the cameras are there. She
inquired as to what else would have to be done in terms of [this
bill's] restrictions and/or notice requirements when, for the
protection of the employees, [the employer] needs to have the
surveillance going. She asked if the idea is: "Okay, well, you're
on notice that you're going to be under surveillance all the time."
REPRESENTATIVE CROFT referred to Section 1, subsections (b) and (c)
and noted that a distinction is made between a more particular
notice and a more general notice. He pointed out that currently
there is no requirement that notice be given. He said he believes
that providing notice is a practice that a good company would
pursue. However, a company could monitor an employee without
permission, which is what "we" want to prohibit. Subsection (b)
states that "the employer shall provide written notice of the
monitoring to each employee." The notice must specifically inform
the employee as to the type of information to be collected, the
means by which the information is collected, the times when
monitoring is to occur, the location of the monitoring equipment,
how the information collected will be used and the identity of the
employees who will be monitored. He turned to subsection (c) which
states, "if an employer engages in electronic monitoring that will
have the direct or indirect effect of monitoring a person other
than an employee, the employer shall provide notice to those whose
conduct may be monitored." He posed a situation in which there
would be a camera in the parking lot or in the entire work area of
the main bank floor. There would be a sign informing people that
they are under surveillance. The bill does not indicate that the
employee has to sign off on the notice.
REPRESENTATIVE MURKOWSKI interjected and stated that she did not
sign anything, but was simply told [about the monitoring].
REPRESENTATIVE CROFT stated that the same standard [would be held
in the bill]. He said that he didn't want [monitoring to be] done
covertly but rather openly. In a bank one would probably
understand being under surveillance. Therefore, there would be
specific notice for the bank employees, while only very general
notification to other people that they are under surveillance.
Number 0909
REPRESENTATIVE MURKOWSKI wondered if a bank robber would have the
defense that he/she did not see the sign indicating they were under
surveillance.
REPRESENTATIVE CROFT said this does not establish a defense to a
criminal action. Representative Croft read Section 1(c) and
indicated that the notice of the monitoring could take the form of
a sign on the entrance [to the building/office]. He reiterated
that if one works in a bank, one should probably expect a certain
amount of that [monitoring]. He posed a situation in which an
employee works in a desk job and is told that all of his/her
outgoing calls will be monitored, there will be 24-hour video
surveillance and every e-mail will be read by the president of the
company. Such a situation would technically fit this bill in that
it would be known [that such monitoring is occurring], although it
wouldn't prohibit it.
CHAIRMAN ROKEBERG recognized that the committee was joined by
Representatives Halcro and Sanders as well as former
Representatives Bettye Davis and Caren Robinson.
Number 1014
REPRESENTATIVE HALCRO directed attention to page 3, lines 29-31,
which defines "electronic monitoring" or "monitoring." He wasn't
sure that bank security would fall under that [definition]. He
asked, "Wouldn't it apply on page 2, lines 28 through 31, where it
talks about it's not necessary if the employer is acting in
cooperation with law enforcement; ... could that be an argument
there?" He posed the situation in which a bank with a video camera
is robbed and the video tape is given to the police. In that case,
[providing the video tape] would be considered cooperating with law
enforcement.
REPRESENTATIVE CROFT referred to page 4, line 1, and indicated that
it would comply as "camera" is referenced. In regard to the
language at the bottom of page 2, it specifies that the law
enforcement officers "are proceeding under a search warrant." He
explained that monitoring should be for the purpose of preventing
theft and thus the bank could monitor for sound as well as sight
due to concerns of money being stolen from the bank. In
Representative Croft's opinion, it becomes a law enforcement issue
when [the bank] doesn't want to inform them because the bank wants
to catch [the person stealing money]. If the desire is to monitor
[employees] without telling them, then Representative Croft wanted
that entity to talk with a neutral observer, such as judge, with a
search warrant in the situation outlined above.
REPRESENTATIVE MURKOWSKI continued with the bank scenario and the
location of the monitoring equipment. She pointed out that one of
the criteria for the notice requirement [established in the bill]
is that the employee is to be informed of the location of the
monitoring equipment. She asked if that would mean that there
would have to be specific references to the location of the
surveillance cameras. She indicated that such information would
lead to [an employee who is interested in stealing] to do the
misdeed in an area where he/she cannot be spotted [by the cameras].
Therefore, she inquired as to how much information is going to be
given [to the employees]. Representative Murkowski said, "If I'm
a bank employee, I would just understand that ... I'm going to be
under surveillance all the time, that's part of my job." However,
she didn't know that all the cameras in the room should be
identified in order to comply with the notice requirement.
REPRESENTATIVE CROFT expressed concern that [the
language/requirement] is specific enough that [the employee] would
know the reasonable expectation of privacy he/she would have in
that area. Therefore, the exact location of the cameras isn't
vital. He specified that he wanted employees to know how and when
they are being monitored generally and what is the monitoring being
used for. He suggested that the language on page 2, line 4, could
be changed to language such as "location to be monitored" or other
language that expresses that a certain floor or area will be
monitored versus the specific location of each camera.
REPRESENTATIVE MURKOWSKI indicated agreement with the language
suggestions of Representative Croft.
Number 1302
CHAIRMAN ROKEBERG inquired as to Alaska's current law in regard to
a business' right to monitor its employees.
REPRESENTATIVE CROFT answered: "I know of no statutory limits on
them doing it and it would only be in case law." He noted his
impression that it is virtually unlimited.
CHAIRMAN ROKEBERG noted that he [sponsored] a bill on this topic a
couple of years ago. However, his bill attempted to define what
rights employers had and by doing so, establish the rights of
employees at the same time. Chairman Rokeberg recalled that it is
currently proper for employers to monitor activities of its
employees, including listening to [an employee's] telephone
conversations and accessing their computers. He believed that his
bill and this bill speak to the same type of issues relating to
issues that occurred in Fairbanks [at the university] and in
Anchorage at the Cook Inlet Region, Incorporated (CIRI), in [both
cases] an employee accessed child pornography via their work
computer. Chairman Rokeberg inquired as to what would happen in
the situation in which a caller booking an Alaskan airlines flight
is notified that his/her call is being monitored.
REPRESENTATIVE CROFT said that he did remember Chairman Rokeberg's
bill. He remarked that he has experienced unexpected criticism of
this bill due to the bill's effect of limiting the rights of
employees. He explained that [prior to this legislation] there was
a question in regard to how much one could do as it wasn't clear in
the case law. Therefore, this bill would say that if [an employer]
tells [an employee] what is being done, then it can be done and
thus any question in regard to monitoring would be resolved through
notice. Representative Croft clarified that he didn't want to
establish such a complete bar that it's unreasonable on one end or
so wide open that it's unreasonable on the other end. Therefore,
the middle ground becomes the notification [requirements] with a
few specific limits such as no monitoring in the bathroom/changing
area without a warrant.
REPRESENTATIVE CROFT recalled discussions of the computer issue [as
related to Chairman Rokeberg's bill]. He also recalled discussions
of the situation in which an employee places his/her wallet/purse
in an empty file cabinet drawer, which is owned by the employer.
He asked if, in such a situation, [the file cabinet] could be
searched since it is owned by the employer. Representative Croft
emphasized that because an [employee's] property is on a location
that is owned by the employer, it is not the "end all" of the
employee's privacy rights. A similar situation would exist when an
employee's information is on the hard drive of an employer-owned
computer. Therefore, Representative Croft preferred that such
[situations] be addressed in order that people know what they can
and cannot do. In regard to the Alaska Airlines monitoring of
telephone calls, he believed that notification is given due to the
probability of people being outraged if they weren't informed of
the monitoring.
CHAIRMAN ROKEBERG interjected his understanding that it is legal to
do that to people in the state of Alaska without informing them.
REPRESENTATIVE CROFT acknowledged that was his understanding as
well.
Number 1599
CHAIRMAN ROKEBERG remarked that it is ironic that both he and
Representative Croft have come to the same conclusion from
different venues. He noted that one of the primary intentions of
his bill was to inform businesses and employees of their rights;
there should be a written policy of that. Chairman Rokeberg said
that he believes the bill should also speak to the use of evidence
that is obtained with or without permission. He inquired as to
what would happen in a court of law when there is a video tape of
a crime being committed. He further asked whether it would be an
affirmative defense to say that privacy rights had been abridged;
what would happen in terms of the fruits of the [poisonous tree]
argument? He asked if it would be helpful to add a provision to
the bill that stating that any evidence gained would not be
excluded from the prosecution of a criminal act.
REPRESENTATIVE CROFT directed the chairman's attention to page 3,
subsection (g), which specifies [when and to whom] an employer may
disclose information obtained through monitoring, which partially
addresses the chairman's concerns. Representative Croft noted that
there have been some concerns in regard to the courts directing [an
employer to disclose information obtained through monitoring],
which isn't quite the same as paragraph (3) and thus a paragraph
(4) could be added to specify disclosure per a court order.
Number 1719
REPRESENTATIVE HALCRO turned to the CIRI case [in which an employee
was found to be accessing child pornography via his computer at
work]. He informed the committee that the [inappropriate activity]
was discovered when the employee's computer was sent out to be
repaired. The information was turned over to the police and the
employee was prosecuted. Therefore, Representative Halcro surmised
that it is legal to turn over such information to a law enforcement
agency. He expressed concern that the ability to prosecute would
still be available in such a case, even in a case in which the
employer didn't have an established policy stating that the
employee's computer and equipment would be monitored.
REPRESENTATIVE CROFT said that he read the language "may disclose"
on page 3, subsection (g), as allowing disclosure [to a law
enforcement agency]. He said [referring to page 1, subsection
(b),] that he also read "Before an employer engages in electronic
monitoring of an employee, the employer shall ..." [to allow
disclosure to a law enforcement agency]. Therefore, both would
have the ability to turn over [information obtained through
monitoring] to law enforcement and be in continuing violation of
the statute. He related his understanding that under current
[statute] if [an employer] is doing monitoring that it shouldn't,
that information could be turned over to law enforcement; however,
[the employer] should provide a policy or else the employer is in
continuing violation and may be fined [for] improperly monitoring
employees. Still, such an employer is not barred from turning the
information over to the police.
CHAIRMAN ROKEBERG related his understanding that currently, the
employer has the right to assert his rights through his property
and all activities on the premises. He believes this is the common
law.
REPRESENTATIVE CROFT remarked that he was not sure.
CHAIRMAN ROKEBERG clarified that he wasn't sure that this had been
tested in the State of Alaska, given the state's constitutional
amendment.
REPRESENTATIVE CROFT agreed that would be the general parameters.
However, he pointed to the women's changing room example. That
changing room is clearly on property owned by the employer. If the
rule is that [the employee] can be monitored on the employer's
property without notice, "then what is the possible legal problem
with that?" Yet, it's known that something is wrong with
[monitoring in a changing area/bathroom]. Therefore,
Representative Croft suspected that Chairman Rokeberg was correct
in general, but there would still be instances which would cross
the line.
CHAIRMAN ROKEBERG commented that there would probably be case law
on those [special instances].
Number 1886
REPRESENTATIVE MURKOWSKI referred to Section 3(b)(1) and inquired
as to what is a promotional offer. She expressed concern regarding
the term "promotional offers."
REPRESENTATIVE CROFT explained that part of the information is the
[consumer's] name, address and phone number; the billing statement
is one of the legitimate uses of that information. Furthermore, he
didn't want to necessarily prohibit the use of that information for
that particular store's commercial promotional offers. However,
this does fall under the section saying that a retailer may release
consumer information.
REPRESENTATIVE MURKOWSKI inquired as to whom this information is
being released.
REPRESENTATIVE CROFT stated that in regard to the billing statement
area, a separate company may perform the billing. He pointed out
that Section 3(b) only [applies] when a [consumer] has said no.
Perhaps it makes sense to delete "or promotional offers".
CHAIRMAN ROKEBERG noted that scanners for club card memberships
provide that business with buying patterns of consumers. He
surmised that Representative Croft wished to prohibit the resale of
that information, but not the use of that information internally.
REPRESENTATIVE CROFT clarified that [the bill] prohibits the resale
[of consumer information] without the permission of that consumer.
There is a range of conduct here from justifiable to outrageous.
Number 2165
PAM LaBOLLE, President, Alaska State Chamber of Commerce, said that
the Alaska State Chamber of Commerce is concerned with HB 278.
First, she inquired as to the need of the legislation; "Who are we
protecting? Has there been widespread abuse?" She noted that she
has not seen a need a for this. Furthermore, she echoed earlier
comments that [those doing inappropriate actions] would do so in
the areas that are not monitored. She pointed out that [an
employer] can't call the police because they suspect something
because, in most cases, the police have to have some reason to
involve themselves. She asked if the police can do surveillance
under this.
MS. LaBOLLE said that this protects those that are engaged in
criminal activity. She posed a situation in which an employer is
informed that an employee receiving workers' compensation is doing
so fraudulently. She asked, "Where does your ability to observe or
to monitor their [an employee's] activities go?" She also posed a
situation in which [an employee's] inappropriate activities are
taking place in the bathroom. She turned to those employees that
work out of the home via computers that are networked to their
employer's computers; nothing can be done to monitor that
employee's activities outside of the place of employment. She
indicated that [if the monitoring occurs] during working hours,
then the illegal activity would take place after working hours.
She asked, "What about drug dealing or things like that, which will
primarily take place in restrooms and locker rooms and such?" Ms.
LaBolle turned to the situation of a customer complaining that an
employee was rude on the phone. [The employer] cannot report back
to the customer, without that employee's permission. She said,
"Illegal to look at your own phone data, if it's monitored and
collected off-premises through a phone bill and you get the phone
bill back." In conclusion, Ms. LaBolle reiterated that the Alaska
State Chamber of Commerce has great concerns with this bill.
REPRESENTATIVE CISSNA asked Ms. LaBolle how this legislation would
be a problem in the arena of sexual harassment.
MS. LaBOLLE pointed out that if there are places in which [an
employer] can't observe [monitor], then there would not be the
evidence to bring [the situation] to a search warrant.
REPRESENTATIVE CISSNA surmised that if there is enough evidence
that criminal activity of some kind is occurring, then a search
warrant could be obtained and obtained secretly. [A portion of
Representative Cissna's statements were not recorded due to the
tape reversing to Side B.]
TAPE 00-45, SIDE B
Number 0010
MS. LaBOLLE replied that if an employee brings to [an employer's]
attention that he/she is being harassed, then that is the easier
way to follow this. However, she posed a situation in which [an
employer] suspects such a situation, but no one has the courage to
come forward and inform [the employer] who then has to find this
out in other ways of observation and collection of information.
REPRESENTATIVE CISSNA remarked that she had never worked for a
place that monitored for problems ahead of time. She guessed that
it sounded fairly intrusive and suspicious. In the cases she has
heard of regarding sexual harassment, it was difficult to get a
court to accept it and often, the employer is the least eager to
find out.
MS. LaBOLLE reiterated the point that there hasn't been much abuse
in the area of monitoring employees. This is not a problem that
one hears about nor is it of widespread concern.
REPRESENTATIVE CISSNA pointed out that more and more monitoring is
occurring. She interpreted Ms. LaBolle as meaning that it would be
dangerous not to have a camera in the bathroom.
MS. LaBOLLE clarified that she was not suggesting that cameras be
placed in bathrooms. However, there must be ways to monitor,
through access codes, who was in the changing room during certain
times or who reported to work; that would be the collection of
information electronically. Ms. LaBolle asked why personal
observation would be better than electronic observation or
collection of data that indicates a specific activity.
Number 0149
REPRESENTATIVE HALCRO agreed that this is an area in which one
should proceed very cautiously. From an employer's standpoint, as
Representative Halcro noted he is, this is the type of legislation
he didn't mind. If employees are given notification that they are
being [observed], some actions that are against public policy may
be eliminated ahead of time. For example, his company had problems
with employees that felt they could take a car home and others felt
that they could fill their car with gas since there is a gas pump
on the premises. About a year ago, Representative Halcro's company
had closed circuit cameras installed, posted [notification] signs
and briefed employees [on the monitoring] and since then, there
hasn't been a problem with missing cars or stolen gas. He noted
that one of his jobs in college was with a department store in
which the department store informed employees that one way to deter
shoplifters is to approach the customer to let them know someone is
there and watching. Representative Halcro informed the committee
that alarm companies tell [homeowners] that the stickers placed in
the windows deter probably 95 percent of the burglaries, which is
another example in which forewarning can deter undesired actions.
MS. LaBOLLE indicated that some may be frightened when they are
informed that their call may be monitored. Furthermore, not
everyone has such a system. Although Ms. LaBolle agreed that
announcing that monitoring will take place is an excellent
deterrent, [the Alaska State Chamber of Commerce] has questions
concerning the parameters of this legislation and how it would
restrict the employer's ability to know what is going on with
his/her employees on his premises or with employees that are doing
business off-premises.
Number 0383
CHAIRMAN ROKEBERG remarked that this isn't a contest between the
bill he introduced a couple of years ago and Representative Croft's
legislation. He suggested that HB 278 takes away the rights that
a business may currently have, which is different than his bill,
and places a duty on businesses to make a proactive step.
Therefore, [HB 278] would change existing law.
REPRESENTATIVE HALCRO said that he understood that. However,
taking a proactive stance means that one protects oneself against
possible future losses. As an employer, he indicated that he
didn't have a problem with informing his employees about [the
monitoring practices] of the company as it may deter some employees
from doing things that are prohibited by company policy.
CHAIRMAN ROKEBERG clarified that his point is that this legislation
is a blanket prohibition. However, Chairman Rokeberg's legislation
took the approach to mandate an employee agreement to inform the
employee, but if that employer didn't then it wouldn't default the
victim; it would shift from the employer to the employee. In
either approach, the intent is to inform the employee. He asked
Ms. LaBolle if that is what the state chamber and the people of
business procedures throughout this state and the country
recommend. He commented that usually the more sophisticated
businesses have written agreements and notifications for employees,
particularly in regard to electronic monitoring "but not
necessarily about monitoring the gas pump with a camera, which this
bill would require."
MS. LaBOLLE agreed that the state chamber always encouraged good
and complete employee written policies. However, she indicated
that there are a number of small businesses that aren't
sophisticated in this matter. She said that requiring the
employee's consent before [an employer] can use any of the
information that was collected electronically is quite limiting to
an employer's ability to deal with some sources of employee
misconduct.
CHAIRMAN ROKEBERG asked if anyone else would like to make any
comments. There being no one, he turned to committee questions.
Number 0611
REPRESENTATIVE SANDERS posed a situation in which a camera is in
use and there is a sign specifying that surveillance is occurring;
however, the sign is torn down at some point. If a crime is
committed in that area under surveillance after that sign was torn
down, could a lawyer get [the case] thrown out of court because the
sign was not present as evidence?
REPRESENTATIVE CROFT remarked that lawyers can attempt many things.
However, in such a case Representative Croft believes that
reasonable attempts had been made to serve notice of monitoring.
Furthermore, he didn't believe there is a prohibition on making
things evidentiary, particularly because [the surveillance] can be
turned over to law enforcement whether it complied or not.
REPRESENTATIVE SANDERS asked if [the surveillance] can be used [by
law enforcement].
REPRESENTATIVE CROFT responded that there is no prohibition against
[law enforcement] using [the surveillance], and furthermore there
is a direct command for [the surveillance] to be turned over.
Therefore, Representative Croft didn't believe there would be any
bar to doing it. The bill doesn't say that these things can't be
used in criminal court. Clearly, the bill specifies that
[surveillance] can be turned over to law enforcement.
REPRESENTATIVE SANDERS emphasized that he didn't want to pass
anything that would, even accidentally, protect criminal activity.
REPRESENTATIVE CROFT said although he was sure that wasn't the
case, one could always include language that is more assuring. For
example, the following provision could be inserted: "any violation
here shall not be used to invalidate evidence in a trial."
CHAIRMAN ROKEBERG pointed out that there is case law in Alaska.
The aforementioned case in Fairbanks involved a university employee
who had pornography and the point of contention was whether the
pornography was on his zip drive or his hard drive. Therefore, the
university couldn't fire this employee and had to place him on
administrative leave and pay this employee during the time period
that the case was being litigated. That seems ludicrous. Chairman
Rokeberg identified one of the problems with this bill as the
default on the part of the employer to do something while the other
approach is to codify what is and is not legal. Furthermore, the
other approach assumed that the common law wasn't prohibited unless
specifically prohibited.
REPRESENTATIVE CROFT turned to Ms. LaBolle's comments that there is
not a need for this [legislation]. However, the problem is that it
is an uncertain area and thus the question becomes: "shouldn't the
legislature define some parameters?" He pointed out that there are
abuses from the employers to abuses that pose the question as to
whether they can even be sanctioned. Therefore, such breadth
indicates the need for some parameters. He said, "If you can't
even know whether you can use it when you find that kind of
criminal activity or whether it's okay for them to monitor the
changing room, it is an area that needs to have some standards put
in."
CHAIRMAN ROKEBERG said that he agreed with Representative Croft.
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REPRESENTATIVE HALCRO acknowledged that this is an area in which
[the legislature] should proceed cautiously. However, he was not
sure that he could differentiate between the arguments as to
whether [the employer] should tell [the employee] or has to tell
[the employee]. To him, it seemed to be the same thing. As an
employer, he wanted to inform and should inform [his employees] as
it will hopefully deter [impropriety]. If an employer is forced by
law to inform employees that his/her e-mails or websites visited
during the day are being monitored, he hoped that would deter
people from being at sites they shouldn't.
CHAIRMAN ROKEBERG interjected and noted that is the current law.
REPRESENTATIVE HALCRO stated that he is not sure of the
distinction. He posed a situation in which a small two-person
operation wants to stop theft from the petty cash box. If a camera
or two-way mirror is installed, he believes the employees should be
informed of [that monitoring]. He reiterated that he is not sure
[of the distinction] between should [the employees] be told, does
[the employer] have to tell them or is it the law?
CHAIRMAN ROKEBERG specified that under this bill if [an employer]
has a monitor on the gas pump, [the employer] would have an
affirmative mandate to inform [the employees].
REPRESENTATIVE HALCRO questioned why he [, as an employer,]
wouldn't want to tell him/her. He asked why [an employer]
shouldn't put a sign up specifying that the gas pump is being
monitored.
CHAIRMAN ROKEBERG remarked, "Because I just paid $5 million for the
building and I don't want to put a sign up there."
REPRESENTATIVE HALCRO commented that if an employer paid $5 million
for a building, then paying for an 8 + x 11 sign wouldn't be of
concern.
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CHAIRMAN ROKEBERG reiterated his belief that he and Representative
Croft both agree that any employer should have a written policy and
explain to employees what the employee should and shouldn't do as
well as what the employee can expect in regard to privacy.
REPRESENTATIVE HALCRO agreed.
REPRESENTATIVE CISSNA noted that sometimes there is a need for
privacy. She expressed the need to know "the lay of the land" [the
rules of the work environment] and that is a right.
CHAIRMAN ROKEBERG agreed.
REPRESENTATIVE CISSNA remarked that respect for an employee leads
to good morale and more loyalty. [This legislation] does more than
just protect rights as she believes it would build "a better sense
among the employees."
REPRESENTATIVE HALCRO informed the committee of the following true
case that was related to him by a judge. In this case a guy went
into a convenience store and purchased a soda. The store clerk was
confrontational for no reason and after the customer left, the
clerk called the police alleging that the customer had harassed the
clerk and thus the customer was arrested. This new clerk didn't
know that the convenience store had a video camera monitoring the
cash register. Therefore, the video tape would be used in order to
determine who is telling the truth. Representative Halcro believes
the question becomes whether such a situation would have happened
had the clerk known that the area was being monitored. He believes
that situation supports having signs that inform [the employee]
that monitoring is occurring.
CHAIRMAN ROKEBERG related his distaste for signs. He commented
that this is an important issue. Furthermore, he felt that the
employment law in Alaska needs some public policy direction.
Chairman Rokeberg requested that Representative Croft work with the
business community and return to this committee with a bill that
everyone can agree upon.
ADJOURNMENT
There being no further business before the committee, the House
Labor & Commerce Standing Committee was adjourned at 4:40 p.m.
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