Publications

Notice of Electronic Monitoring Act: 1984 Revisited?

November 17, 2000

The Notice of Electronic Monitoring Act ("NEMA") is rapidly working its way through Congress and may well become law before year-end. NEMA will regulate all electronic monitoring in the workplace. According to the American Management Association's ("AMA") latest survey, three quarters of all large US companies monitor employees' e-mail, computer files, and phone calls. This is a twofold increase in employee monitoring since the AMA's 1997 survey.

NEMA requires employers to notify their employees of any monitoring of communications or computer usage prior to monitoring. It covers reading or scanning of employee e-mail, keystroke monitoring, or programs that monitor employee Internet usage. The requisite notice must be clear, conspicuous, and given annually or whenever the employer's policies change. The notice must also specify the frequency of the monitoring, the kinds of information likely to be monitored, how monitoring will be accomplished, and how the monitored information will be stored, used and disclosed.

Violation of the Act will allow for a minimum of $5,000 in liquidated damages, punitive damages and recovery of attorney's fees. Damages are capped at $20,000 per employee and $500,000 per incident. There are no criminal penalties.

NEMA provides a narrow exception to its stringent notice requirements. An employer may monitor without notice if the employer reasonably believes a particular employee is engaged in conduct that significantly harms the employer or another employee and electronic monitoring will provide evidence of the harm. This exception entails a fact-intensive inquiry which will, in all likelihood, generate more litigation as employer and employee counsel dispute the alleged harm threatened and the employer's reasonable belief concerning that harm. Further, because of the fact intensive nature of this exception, disputes concerning this provision will not be resolved during pre-trial motions, but rather, will be left to juries to decide at trial.

Firm Highlights

Publication

Paid Sick and Safe Leave

When you think of Texas do you think of mandatory paid time off laws? How would Paid Sick and Safe Leave affect your HR policies? Join Kevin and Erin McNamara as they discuss this...

Publication

The Trifecta: ADA, FMLA, and Workers Compensation

A look into ADA, FMLA, and Workers Compensation from both the HR and Risk Management side. How do they work together? Listen as Kevin and Senior Risk Manager of Patterson Companies, Maggie Hobbs discuss...

Publication

Flextime in the Workplace

Is flextime right for your office? How do you keep confidential information confidential when employees are working off site? Listen as Kevin Mosher talks to Bill Kelly, HR Director of Vinco, Inc., about piloting...

Event

ABCs of Employment

Experience

Fifth Circuit Decision Secured In Civil Rights Case

Dallas partner John Ross, obtained a favorable decision from the Fifth Circuit Court of Appeals on behalf of his clients, El Paso Hospital District and two of its nurses, on civil rights, constitutional, and...

Publication

ADA Accommodations that Come with Fur and a Tail

Boa constrictors in the workplace?  Do we have to accommodate all employee pets?  Join HR attorneys Kevin Mosher and Laura Alaniz for a fun and informative discussion on pets in the workplace.   

Publication

Interviewing Tips and Tricks

Publication

Is Sexual Orientation Discrimination Unlawful? Supreme Court to Decide!

Listen to HR attorneys Kevin Mosher and Stephanie Rojo discuss sexual orientation discrimination and transgender discrimination issues and the exciting cases before the Supreme Court.  Will SCOTUS find that federal law protects employees and...