Maine Joins Three Northeastern States in Regulating Workplace Electronic Monitoring

Maine Governor Janet Mills recently allowed LD 61 – An Act to Regulate Employer Surveillance to Protect Workers – to become law without her signature. This law, which takes effect this summer, applies to all Maine employers, public and private, regardless of size, and appears to cover contract workers, in addition to employees. With LD 61, Maine joins Connecticut, Delaware, and New York in enacting statutes regulating surveillance in the workplace.

LD 61 establishes new limitations on employer surveillance and creates mandatory disclosure obligations for employers that monitor employees through electronic means. The law defines “surveillance” broadly as monitoring an employee through an electronic device or system, including computers, telephones, wire or radio systems, electromagnetic or optical systems, and similar technologies. This could include mobile device tracking, remote attendance applications, or employee productivity tracking tools. “Surveillance,” however, does not include the use of surveillance cameras for security or safety purposes or the use of GPS tracking or other safety devices installed on employer-owned vehicles. 

The new law prohibits employers from:

• Conducting employee surveillance without prior notice to employees;
• Using audiovisual monitoring in an employee’s residence, personal vehicle, or personal property unless such monitoring is required for the employee’s job duties; and
• Requiring employees to install data‑collection or tracking applications on personal electronic devices (as opposed to employer-provided smartphones and other electronic devices); employees may lawfully decline such requests. 

A limited exemption applies where surveillance is used by patients, clients, or unpaid caregivers in a setting where personal care services are delivered.

Restrictions on Monitoring

The notice requirement in Maine’s law follows in the footsteps of similar notice requirements for workplace monitoring in Connecticut, Delaware, and New York. The restrictions on monitoring, however, are unusual. At first glance, Maine’s statute imposes broad restrictions on monitoring employees when out of the office. In practice, however, the restrictions are limited. 

Employers may still conduct audiovisual monitoring in an employee’s residence, personal vehicle, or personal property if “such monitoring is required for the employee’s job duties.” For example, this should permit employers to continue requiring employees to turn on their video when joining work calls from home. In general, due to the expense of monitoring and a desire to avoid over-collecting personal information, employers tend not to monitor employees out of the office unless necessary for the employee’s job responsibilities. 

Moreover, it is not clear that employees’ right to decline the installation of data collection or transmission applications on their personal devices means that employees necessarily avoid any consequences for declining. For example, the law does not explicitly require an employer to allow an employee to participate in the convenience of a “Bring Your Own Device” (BYOD) program if the employee refuses to accept security software as a condition of participation in that program.

Employer Notice Obligations

Maine’s new law also imposes a bevy of notice obligations on employers throughout the employment process. Now, employers that use permissible surveillance must:

• Inform job applicants during the interview process that the employer engages in surveillance;
• Notify employees that surveillance tools are used; and
• Provide written notice at least once per calendar year to all current employees about the use of surveillance tools.

Although LD 61 requires multiple notices, the notices are, in some ways, less onerous than the notice requirements in Connecticut, Delaware, and New York. Delaware and New York require employee acknowledgment of the surveillance notice, and Connecticut and New York require workplace posters. Moreover, to reduce risks under the common law of privacy, many employers already provide notices about employee surveillance in all states. As a result, multistate employers potentially can fold Maine’s notice requirements into their existing employee notice programs with only the additional steps of providing a notice during the interview process and annually during employment. For those employers that notify employees of ongoing surveillance within their annually updated company handbook or compliance manual, there may not be a need to distribute an additional notice to employees.

Enforcement

The law will be enforced by the Maine Department of Labor (DOL) and will take effect 90 days after the adjournment of the upcoming legislative session. The Maine legislature typically adjourns in April or May. Employers found to be in violation of the law by the Maine DOL will be subject to a fine of not less than $100 and not more than $500 for each violation. 

Action Items for Employers

Employers should consider reviewing practices now to ensure future compliance, including:

1. Audit current surveillance technologies, especially in remote work, BYOD, and field‑based roles, including home health or care-related roles. If employee surveillance systems are already in place, develop and distribute notifications to current employees no later than the effective date of the law.
2. Prepare mandatory disclosures, including an interview-stage notice and annual employee notices.
3. Update handbooks, policies, and onboarding materials to reflect new requirements.
4. Review BYOD and device‑management practices to ensure employees are provided a right to decline monitoring on their personal devices.
5. Train HR and supervisors on the scope of permissible monitoring and the law’s restrictions.