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. Number 0848 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. Number 0975 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.