July 4, 2022

Volume XII, Number 185

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New York Law Requires Employee Notice Of Electronic Monitoring

The new year brings a new law regarding electronic monitoring of employee communications. Effective May 7, 2022, New York employers will be required to provide notice to employees for certain types of electronic monitoring; the new state law applies to all private employers with a place of business in the state. 

Any employer that electronically monitors phones, emails, and/or internet usage must give prior written notice of that monitoring to all new employees and obtain a written acknowledgment (which may be in electronic form) from those employees before monitoring them. Notably, employers do not have to provide written notice to existing employees, and existing employees do not need to acknowledge that their communications may be monitored. However, employers must post a conspicuous notice regarding the electronic monitoring where those who are being monitored can see it.

The New York State Office of the Attorney General has the authority to enforce the law. Employers who violate the law may be fined $500 for a first offense, $1,000 for a second offense, and $3,000 for third and subsequent offenses. Significantly, there is no private right of action for affected individuals. As such, the law will likely not motivate large class action lawsuits as other recent privacy laws have done, such as the biometric privacy law recently enacted by New York City. However, if employers fail to provide new employees with proper notice, accumulated fines could become significant – at $3,000 for each violation.

The new law will not apply to processes designated to manage the volume or type of incoming or outgoing email, voicemail, or internet usage; targeted to monitor or intercept any specific individual’s communications; or performed solely for purposes of system maintenance or protection.

Employers should consider preparing the necessary notification forms and acknowledgements for new employees and postings for existing employee, ahead of the May effective date. While the new law does not specifically require notification in employers’ employee handbooks, a reference to electronic monitoring in an employer’s handbook and other relevant policies will be useful to notify employees that electronic monitoring is occurring and will likely bolster an employer’s defense that employees had adequate notice about monitoring.

© 2022 BARNES & THORNBURG LLPNational Law Review, Volume XII, Number 38
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About this Author

David B. Ritter Barnes Thornburg Law Firm Labor and Employment Law Attorney Chicago
Partner

David B. Ritter is a partner in the Chicago office of Barnes & Thornburg LLP. He is a member of the firm’s Labor & Employment Law Department and co-chairs the Logistics and Transportation Practice Group. He represents management nationwide in virtually all areas of labor and employment law, including employment discrimination and harassment claims, wage and hour disputes, non-compete, trade secret and restrictive covenants and employment torts.

With nearly 30 years of experience representing public and private companies, Mr. Ritter has...

312-214-4862
Douglas Oldham Labor and Employment Law Attorney Barnes Thornburg Law Firm
Of Counsel

Douglas M. Oldham is of counsel in the Columbus and Chicago offices of Barnes & Thornburg LLP and a member of the firm’s Labor and Employment Law Department.

Mr. Oldham has represented employers in employment discrimination litigation since entering the firm in 2004. He has accumulated significant labor and employment litigation experience throughout that time, including:

  • briefing numerous successful motions for summary judgment and motions to dismiss, as well as copious nondispositive motions, in federal...

312-214-5605
Kenneth J. Yerkes Employment lawyer Barnes Thornburg
Partner

Chair of the firm’s Labor and Employment Department for two decades, Ken Yerkes has spent over 30 years successfully fighting for his clients' rights and business objectives at the bargaining table, in arbitration and federal and state court, as well as in plants across the country through proactive training, counseling and union avoidance campaigns.

Ken's ability to transform complex scenarios into workable strategies has earned him not only his clients' trust, but also acclaim as one of the country’s recognized leaders in labor and employment law. He is a fellow...

317-231-7513
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