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Volume XII, Number 137

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May 16, 2022

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New York Will Require Employers to Notify Employees of Phone, Internet, and Email Monitoring

Effective May 7, 2022, all New York employers will be required to provide notice to employees of any employer monitoring of work phones, emails, or Internet use.  This new law amends the New York Civil Rights Law (a law different than New York’s anti-discrimination law) and, according to the legislature, is designed to “increase transparency within the organization,” “avoid lawsuits and litigation regarding invasion of privacy,” and “permit employees to make informed decisions about their Internet use with full knowledge of the ramifications of their actions, while supporting companies’ ability to monitor Internet activity within their organization.” 

Notice must be provided in written form to all new hires who are subject to electronic monitoring, and employers must obtain a written acknowledgement from each new employee who is provided such notice.  This written notice and acknowledgement can also be in electronic form.  The law does not require that current employees receive such written notice and provide an acknowledgment of receipt, but employers are required to post notice of electronic monitoring covered under this law in a conspicuous place, which is readily available for viewing by employees subject to electronic monitoring.  The Attorney General, who is tasked with enforcing this law, has not released any template notices that employers can use.  Absent the release of any such documents—which we will be monitoring ahead of the May 7, 2022 effective date—employers should create their own notice and onboarding materials, which could also be included as part of an employee handbook. 

The notice provided by New York employers should inform employees that any and all telephone conversations or transmissions, electronic mail or transmissions, or internet access or usage by an employee of 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.

There are carve outs to this notice requirement.  Specifically, employers do not have to provide notice for—and this law does not apply to—processes that are: (1) designed to manage the type or volume of incoming or outgoing electronic mail or telephone voice mail or internet usage; (2) not targeted to monitor or intercept the electronic mail or telephone voice mail or internet usage of a particular individual; and (3) performed solely for the purpose of computer system maintenance and/or protection. 

The Attorney General is authorized to enforce this new law, which does not create a private right of action for impacted employees.  An employer may face civil penalties up to a $500 for a first offense, $1,000 for a second offense, and $3,000 for a third and each subsequent offense. 

While most employers already provide some type of notice of monitoring to their employees, they should plan to come into compliance with this new workplace notice obligation by May 7, 2022.  To that end, employers should consider taking the following steps:

  • Revise any pre-existing electronic monitoring practices and determine what changes, if any, are needed to comply with this law by the May 7 effective date.

  • Be on the lookout for the release of any notice or onboarding templates in advance of the May 7 compliance deadline, but otherwise be prepared to draft workplace notice and onboarding materials reflecting the electronic monitoring covered by this law if no such templates are released.

We will monitor for the release of any additional guidance or relevant templates, and will update accordingly. 

Danielle Dillon also contributed to this article. 

©1994-2022 Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C. All Rights Reserved.National Law Review, Volume XI, Number 343
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About this Author

Associate

Evan litigates a wide array of employment disputes before state and federal courts as well as administrative agencies. Evan has experience handling matters at all phases of the litigation process and also assists clients in resolving their disputes through mediation and settlement.

Evan’s practice also includes advising clients on a range of issues, including compliance with federal, state, and local employment laws as well as drafting and negotiating employment agreements.

Prior to joining Mintz, Evan was an associate...

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Michael S. Arnold, Mintz Levin Law Firm, Labor Law Attorney
Member / Chair, Employment, Labor & Benefits Practice

Michael Arnold is Chair of the firm's Employment, Labor & Benefits Practice.  He is an employment lawyer who deftly handles a wide array of matters. His capabilities include counseling on everyday HR life cycle issues, defending management and senior executives in connection with employment-related proceedings, and assisting companies navigate the complex employment issues that arise in transactions.  Michael’s clients appreciate his strong emphasis on providing not just legal advice, but also practical advice, that aligns with organizational and HR strategies while...

212-692-6866
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