May 23, 2022

Volume XII, Number 143


May 20, 2022

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Employees Miffed by Your Monitoring of Company Devices? Give Notice Now to Hopefully Avoid Annoyance Later

We’ve talked about social media policies several times over the years, but it’s been a while since we’ve discussed monitoring your employees’ work phones, emails, and internet usage. As you most likely know, you can and probably should monitor employees’ work phones, emails, and internet usage. You never know when someone outside the business will require you to produce emails (hello, subpoenas or litigation). But, how do you protect your business upfront from employees who are miffed by your monitoring? One of the best ways is to provide notice to your employees that you are watching.

In fact, effective May 7, 2022, the state of New York will require all employers to provide notice to employees that their work phones, email, and internet use is monitored. The new law requires the following for new hires:

  • Written notice (hard copy or electronic) to all who are subject to electronic monitoring

  • Written acknowledgment (hard copy or electronic) of the notice

As for current employees, no written acknowledgement is required but employers must post notice about electronic monitoring. Failure to meet these requirements could result in civil penalties up to $500 for the first offense, $1,000 for the second, and $3,000 for any subsequent offense.

Even if you are not operating in New York or another state that requires notice, we suggest you take the time now to review your onboarding materials and policies and, if you don’t already have one, implement a policy related to monitoring work phones, emails, and internet usage. Providing your employees with your expectations about their electronic usage and notice that you are monitoring their use of company devices could save you from headaches in the future. Here are a few tips:

  • Review and revise any existing policies related to work phones, emails, and internet usage to include your expectations and let them know you are monitoring and will discipline employees for misuse

  • Identify what devices may be monitored (tip: it’s best to limit monitoring to company devices but we understand gray areas may arise and advise you to speak with counsel about those issues)

  • Include the policy and acknowledgement of receipt in the onboarding materials (which will keep you compliant in New York)

  • If you have annual training for employees, consider including a brief section that covers and reminds employees about the policy

  • Also, if you discuss prohibitions in your policy, remember to make clear that there is no prohibition on employees’ rights to engage in discussion of terms and conditions of employment (as that could be protected, concerted activity under the National Labor Relations Act)

© 2022 Bradley Arant Boult Cummings LLPNational Law Review, Volume XI, Number 350

About this Author

Cortlin Bond Healthcare Litigation Lawyer Bradley Arant Boult Cummings LLP

Cortlin Bond is an associate in the Litigation Practice Group. She represents clients in a variety of general litigation matters and assists healthcare providers with legal issues that arise from the daily operation of healthcare facilities. In addition to handling healthcare and general litigation matters, Cortlin assists employers with a variety of labor and employment matters, including workplace investigations, the defense of federal employment claims, and the defense of employment claims predicated on state law tort and contract theories.

Prior to law school, Cortlin worked at...

Anne R. Yuengert Employment Attorney Bradley Birmingham

Anne Yuengert works with clients to manage their employees, including conducting workplace investigations of harassment or theft, training employees and supervisors, consulting on reductions in force and severance agreements, drafting employment agreements (including enforceable noncompetes) and handbooks, assessing reasonable accommodations for disabilities, and working through issues surrounding FMLA and USERRA leave. When preventive measures are not enough, she handles EEOC charges, OFCCP and DOL complaints and investigations, and has handled cases before arbitrators...