On January 7, Governor Janet Mills announced that some enacted bills held from the prior session of the Legislature will become law. One of these is LD 61, An Act to Regulate Employer Surveillance to Protect Workers. This law is applicable to all Maine employers, regardless of size, and covers all employees.
What the law covers, and what it does not
In summary, the law prohibits employers from monitoring employees through an electronic device or system (defined as including a computer, telephone, wire or radio or an electromagnetic, photoelectronic or photo optical system) without first informing them. Surveillance covered by this law does not include cameras used for security or safety purposes, nor does it prohibit GPS tracking or other safety devices on employer-owned vehicles. The law prohibits an employer from using audiovisual monitoring in an employee’s residence or personal vehicle or on the employee’s property, unless it is required by the employer for the duties of the job. There is an exception for personal care services settings.
Notice and consent requirements for employers
Employers who use permitted surveillance are obligated to inform prospective employees during the interview process that the employer engages in surveillance, and must also provide written notice at least once per calendar year to all current employees that the surveillance is in use. The law permits an employee to decline an employer’s request to install surveillance collection or tracking applications on the employee’s personal electronic devices.
Enforcement and effective date
The law will be enforced by the Maine Department of Labor (DOL), which can impose fines for violations. The DOL may also issue regulations to further interpret and implement the law.
The law will take effect 90 days following the adjournment of the upcoming legislative session.
Practical takeaways for employers
If you are already engaged in surveillance of your workplace, or are considering doing so, be sure it is within the limitations of this law. In addition, you should:
1) plan to include this information in your handbook;
2) ensure that steps are taken to inform applicants during the interview process;
3) be prepared with the annual notice; and
4) train HR and supervisors as to these obligations.
Bernstein Shur’s Labor & Employment Group helps businesses of all sizes build compliant, productive workplaces through practical, real-world solutions. The group provides full-spectrum support on issues ranging from hiring and discipline to investigations, union relations, and employment litigation. Anne-Marie L. Storey is a leading Labor and Employment attorney with more than two decades of experience who advises Maine employers on all aspects of workplace law, including compliance, risk management, employee relations, investigations, and litigation. She can be reached at [email protected].