By Joseph S. Brown, Esq.
In November 2021, New York Governor Kathy Hochul signed legislation amending the state civil rights law to add a new provision requiring private employers with a place of business in New York who engage in electronic monitoring to notify workers of electronic monitoring of telephone, email, and internet access and usage. This law goes into effect on May 7, 2022.
Here is what employers need to know:
Who is covered? The law applies to any private individual or entity with a place of business in New York. It broadly covers “telephone conversations or transmissions, electronic mail or transmissions, or internet access or usage by an employee by any electronic device or system, including but not limited to the use of a computer, telephone, wire, radio, or electromagnetic, photoelectronic or photo-optical systems [that] may be subject to monitoring.”
What is not covered? The law does not apply to processes that are: (a) designed to manage the type or volume of incoming or outgoing electronic mail or telephone voice mail or internet usage; (b) not targeted to monitor or intercept the activities of a particular individual; and (c) performed solely for the purpose of computer system maintenance and/or protection. The language used in the amendment strongly suggests that an employer’s review of an employee’s stored e-mail and voicemail falls outside the scope of the law’s notice requirement.
- What does the notice have to say? Any notice must include the following language:
“[A]ny and all telephone conversations or transmissions, electronic mail or transmissions, or internet access or usage by an employee by any electronic device or system, including but not limited to the use of a computer, telephone, wire, radio or electromagnetic, photoelectronic or photo-optical systems may be subject to monitoring at any and all times and by any lawful means.”
Who must receive the notice? A private employer who engages in such monitoring of employees must give prior written notice upon hire to all employees who are subject to electronic monitoring. This notice must be in writing or in an electronic record, and must be acknowledged by the employee in writing or electronically. Employers must also post the notice of electronic monitoring “in a conspicuous place which is readily available for viewing by its employees who are subject to electronic monitoring.”
What are the penalties for non-compliance? The law does not provide for a private cause of action. The Office of the New York State Attorney General will enforce the law and can seek civil penalties in the following amounts: a maximum of $500 for the first offense, $1,000 for the second offense, and $3,000 for the third and each subsequent offense.
What should New York employers do to comply with the new law? If a New York employer engages in or plans to engage in the type of monitoring covered by the law, it should consider how to incorporate the required notice to new-hires as part of their on-boarding process and adopt policies consistent with the new law, including an update of existing policies if necessary.
While the written acknowledgement requirement only applies to new hires, employers may also wish to consider whether to obtain written or electronic acknowledgments of electronic monitoring from current employees. At a minimum, for current employees, the employer should post the notice “in a conspicuous place which is readily available for viewing by its employees who are subject to electronic monitoring.” This process could also include updating employee handbooks to reflect the law’s notice requirements.
Hurwitz & Fine continues to monitor and analyze updates to employment laws. Please contact any member of the firm’s Labor & Employment team for guidance on these evolving issues at 716-849-8900, or by e-mail.