New York State Employers to Require Transparency in Electronic Monitoring
On November 8, 2021, New York Governor Kathy Hochul signed a bill into law (the “Law”) that will require employers to provide written notice to employees before engaging in electronic monitoring of telephone, email, and internet access or usage. The Law will take effect on May 7, 2022. Key takeaways are summarized below.
The Law applies to any employer with a place of business in New York State, regardless of size, that monitors or intercepts employees’ telephone, email, and internet access or usage.
Notice and Acknowledgement Requirements
Employers subject to the Law must provide notice to employees upon hiring. The notice must be in writing, in an electronic record or other electronic form, and must be acknowledged by the employee in writing or electronically. Employers must also conspicuously post the notice.
The Law appears to mandate the specific content of these notices. Specifically, the Law provides that employees must be advised that:
any 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.
Exceptions and Limitations
The Law does not apply to processes that are: (i) designed to manage the type or volume of incoming or outgoing electronic mail or telephone voice mail or internet usage; (ii) not targeted to monitor or intercept the electronic mail or telephone voice mail or internet usage of a particular individual; and (iii) are performed solely for the purpose of computer system maintenance and/or protection.
The New York attorney general has authority to enforce the Law. An employer found to be in violation of the Law will be subject to fines of $500 for the first offense, $1,000 for the second offense, and $3,000 for the third and each subsequent offense. There is no private right of action for violations of the Law.
Takeaways and Best Practices
While many employers may already provide some form of notice of electronic monitoring as a matter of practice, New York employers must soon provide further transparency as a matter of law. New York now joins Connecticut and Delaware as the only states that require employers to inform employees that they are subject to monitoring. Although the Law does not take effect for nearly six months, New York employers should consider taking the following steps:
Review electronic monitoring practices to determine what, if any, activities fall within the scope of the notice requirements under the Law;
Draft notice language in compliance with the Law;
Develop a process for ensuring that all new hires receive the notice and provide the requisite acknowledgement; and
Consider also developing a process for storing employee acknowledgements.