The Connecticut Supreme Court, in a decision that will be officially released on January 5, 2010, has held that employees cannot bring a private right of action against employers that violate the state’s electronic monitoring statute.
In Gerardi v. City of Bridgeport, two city fire inspectors were disciplined for improper job performance through the use of GPS devices, allegedly without the employees’ consent. They claimed that the employer violated Conn. Gen. Stat. 31-48d, which prohibits an employer from electronically monitoring an employee’s activities without prior notice, and sought injunctive relief and monetary damages.
The employees claimed that even though the statute didn’t contain a private right of action, one should be implied. The Court disagreed:
Nothing in § 31-48d (c) entitles employees who have been subjected to electronic monitoring without notice to any specific relief or remedy. Indeed, the statute does not even provide a mechanism by which an employee can report its employer to the labor commissioner for having violated the statute. Nor does § 31- 48d provide any other administrative remedy for the employee. Instead, the statute provides solely for a pen- alty that the labor commissioner can impose once a violation of the section has been determined through an administrative hearing. Section 31-48d (c) therefore clearly delegates all powers related to violations of this statute to the labor commissioner. Accordingly, we conclude that the legislature intended the enforcement mechanism of § 31-48d to be limited to proceedings before the labor commissioner, and not to allow employees to bring civil actions.
As the court then went on to note, had the legislature intended to allow for a private remedy, "it easily could have added language". It didn’t. And here, the Court said the language of the statute foreclosed any further arguments by the employees.
The result here is frankly not that surprising. The statute is fairly new and the Court would have had to do an end run around the language to find differently.
I’ve discussed this statute at length numerous times (including one of my earliest posts in October 2007). Even though there may not be a private remedy for violation, it does not mean employers should simply ignore it. Indeed, this statute can easily be followed by a posted notice in a lunch room or another conspicuous location that the employer may engage in such monitoring. You can download the DOL’s standard notice here.