In 2020, as the world grappled with the emergence of COVID-19, prisons and jails became hotspots for outbreaks. Looking to slow the spread of the disease, and under the threat of litigation, some jurisdictions began to look for alternatives to incarceration, turning to electronic monitoring as the answer.
This ACLU report calls on jurisdictions to replace electronic monitoring with less restrictive and more effective measures, such as court reminders and transportation assistance. The report also outlines ways jurisdictions can mitigate the harms of monitoring in accordance with due process and fairness principles.
does electronic monitoring work
You can read the full report here. Defense attorneys can check out our resource with guidance on challenging pretrial electronic monitoring here. Below, three people share their stories of enduring electronic monitoring.
Electronic monitoring has seen a 140 percent increase in just over a decade. About 125,000 devices are in use, with up to 30,000 of them attached to immigrants on any given day. States with the most prolific use of electronic monitoring include Florida, Texas, California, Massachusetts, and Michigan.
Not only does electronic monitoring impose excessive surveillance on people coming home from prison, but it also hinders their ability to successfully transition back into the community. Additionally, there is no concrete evidence that electronic monitoring reduces crime rates or recidivism.
People subject to electronic monitoring often pay user fees ranging from $3 to $35 per day, along with $100 to $200 in setup charges. This unfairly shifts the costs of incarceration from the government to individuals and their families. A class-action lawsuit in Alameda County alleges that this practice amounts to extortion.
Electronic monitoring can make it difficult for parolees or probationers to go to job interviews, access employment and education, receive medical treatment, responsibly parent their children, or take part in family and community life. Short perimeters around their homes can stop people from emptying their garbage or doing yard work. Exclusion zones may prevent people from visiting homes of family members, religious services, school, or work.
Electronic monitoring can interfere in employment activities. It can create challenges for landscaping, construction, or delivery jobs. Some buildings, such as warehouses, interfere with GPS signals, so people may need to leave work to pick up the signal or call their parole officers. Unplanned overtime or a sudden change in work schedule can also lead to violations that result in further incarceration.
Some states contract with more than one electronic monitoring company. For example, they may rent GPS tracking devices from one company but rent the SCRAM devices used to detect blood alcohol from another firm.
At a minimum, any person ordered to pretrial home confinement with or without electronic monitoring must be provided with movement spread out over no fewer than two days per week to participate in basic activities such as those listed in this procedure (730 ILCS 5/5-8A-4 A-1)
Cook County Sheriff Tom Dart is the official in charge of electronic monitoring, which due to bail reform and COVID-19 precautions in the jail has exploded in numbers. In 2010 only 500 suspects were free on electronic monitoring. That population is now over 3,500.
There have been notable recent walkaways who were quickly recaptured. Last March, so-called "serial stowaway" Marilyn Hartman walked away from the West Side shelter where she is confined on electronic monitoring, and was tracked as she rode a bus to O'Hare where she was quickly taken into custody.
These requirements were added to the Employment Standards Act, 2000 (ESA) on April 11, 2022. There is a special rule that applies in the first year of the requirement. Employers that employ 25 or more employees on January 1, 2022 have until October 11, 2022 to have a written policy on the electronic monitoring of employees in place.
Beginning in 2023, and in the years that follow, employers that employ 25 or more employees on January 1 of any year must have a written policy on the electronic monitoring of employees in place before March 1 of that year.
The requirements relating to written policies on the electronic monitoring of employees apply to all employees and employers covered by the ESA except the Crown, a Crown agency or an authority, board, commission or corporation whose members are all appointed by the Crown and their employees.
For example, an employer owns three wine shops with 12 employees employed in each shop on January 1. This employer employs 36 employees. The employer must have a written policy in place for all employees on the electronic monitoring of employees, even though there are fewer than 25 employees employed at each individual shop.
If an employer employs 20 employees in Ontario on January 1, 2022, that employer is not required to have a policy in place on the electronic monitoring of employees. Say the employer then hires five more employees in May 2022, this employer continues to not be subject to the requirements to have a written policy in place for 2022.
However, if all 25 employees remain employed by that employer on January 1, 2023, the employer would meet the 25 employee threshold on January 1, 2023 and will be required to have a written policy on the electronic monitoring of employees in place for all employees before March 1, 2023.
The ESA does not require the employer to provide employees with a right to privacy. The ESA requirements give some employees the right to be provided with specified information about electronic monitoring by their employer.
The stakes for electronic monitoring are too high for devices to work inconsistently. With use of ankle monitoring devices on the rise, and monitoring apps on the horizon, it is all the more important that technologists and policy experts work together to ensure that all devices meet the same high standards.
Companies can electronically monitor their employees in numerous ways. If you have a work-issued computer, your boss can access your keystroke data, how much time you spend idle, webcam data, and your microphone.
We can advise you regarding your electronic monitoring concerns while working from home. Call us today or contact us online to schedule a consultation with one of our experienced employment attorneys.
New York Gov. Kathy Hochul signed Senate Bill (SB) S2628 into law on Nov. 8, 2021. The law, which takes effect on May 7, 2022, requires every private-sector employer to provide notice of its electronic monitoring practices to all employees 1) upon hiring, with written or electronic employee acknowledgement, and 2) more generally, in a "conspicuous place" viewable by all employees.
The new law applies to all private employers within the state, regardless of size or entity type, and governs surveillance of employee internet usage and communications, including phone calls, text messages and emails. The notice, in written or electronic form, must advise employees that any and all telephone conversations, email communications and internet access or usage may be subject to monitoring "at any and all times and by any lawful means."
The law amends the state's civil rights law and is focused primarily around protecting the privacy interests of employees and a workforce that has largely shifted to electronically based remote work in the wake of the COVID-19 pandemic. Accordingly, the new law only covers processes that target the activity or communications of a particular employee, and excludes activities designed to manage the type or volume of incoming or outgoing email, telephone voice mail or internet usage, or performed solely for the purpose of system maintenance or security. This exclusion is important, but it may give rise to some gray areas given the potential for the use of monitoring tools to achieve multiple purposes.
Employee monitoring is a common practice, and many businesses already disclose monitoring practices through employee handbooks or internal privacy policies, as well as via electronic alerts on computer login screens. Nonetheless, the new law broadly covers all private employers, so there are likely a large number of businesses that will need to review and update current practices. In addition, the required notice and affirmative employee acknowledgement "upon hiring" may necessitate an update to new-hire onboarding procedures in New York starting on May 7, 2022.
Like New York's new law, Connecticut law requires employers to provide prior written notice to employees about the types of monitoring which may occur.1 Connecticut employers must conspicuously post a notice of electronic monitoring practices, but the notice requirement is not specific to new hires and does not require affirmative acknowledgment. The Connecticut law encompasses both private and state employers and more broadly defines "electronic monitoring" as covering all information "on an employer's premises concerning employees' activities or communications by any means other than direct observation."
Connecticut law permits an employer to conduct electronic monitoring without giving prior notice if it has reasonable grounds to believe employees are violating the law, violating the legal rights of the employer or other employees or creating a hostile workplace environment. Connecticut's monitoring law is enforced by the state's labor commissioner, who may levy civil penalties ranging from $500 to $3,000.
Delaware law also requires employers to provide prior written notice regarding monitoring of phone transmissions, email and internet access or usage.2 Like Connecticut, Delaware's law covers both private and state employers. Uniquely, Delaware allows employers to choose between two methods of notification: either 1) provide daily notice when the employee accesses employer-provided systems or internet, or 2) provide one-time written or electronic notice to the employee and obtain employee acknowledgement electronically or in writing. Employers who violate Delaware's monitoring law may be subject to a $100 civil penalty for each violation, which can be filed in any court of competent jurisdiction. 2ff7e9595c
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