New York State’s Law Requiring Employer Notice of Electronic Monitoring Soon Goes Into Force

Beginning on May 7, 2022, all private employers in New York State will be required to notify employees of electronic monitoring in the workplace.  On Nov. 8, 2021, Governor Kathy Hochul signed new legislation amending New York State’s Civil Rights Law to mandate that employers engaged in electronic monitoring inform employees of the monitoring and obtain an acknowledgment that employees received notice.

Notice, Acknowledgment, and Workplace Posting Requirement

The law applies to any employer that “monitors or otherwise intercepts” employee electronic activities such as email, internet usage, and telephone calls. Employers must notify employees who may be subject to monitoring “upon hiring” and obtain an acknowledgment from new hires who receive the notice. The notice and acknowledgment provided to employees can be in writing or electronic form.

Employers must also post notice of electronic monitoring “in a conspicuous place which is readily available for viewing” by employees subject to monitoring.

The law does not clarify whether the required notice may be included in an employee handbook or whether employers must provide it as a separate document. As an extra precaution, if an employer decides only to have the notice included in an employee handbook, the employer should also ensure that employees sign an acknowledgment that they received the employer’s notice of electronic monitoring.

Contents of Notice and Posting

The statute contains specific language that must be included in the employer’s notice, stating that employees “shall 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

However, the law does have some exceptions. Specifically, the law does not apply to employer monitoring processes that are:

1. designed to manage the type or volume of incoming or outgoing email, voicemail, or internet usage;
2. not targeted to monitor or intercept the internet usage, voicemail, or email of a particular individual; and
3. performed solely for computer system maintenance and/or protection.

Based on these exceptions, it seems that electronic monitoring processes such as spam filters, data loss prevention software, and firewalls will not come within the purview of the legislation.

Penalties and Enforcement

While there is no private cause of action for violations, New York’s Attorney General will be enforcing the law. The law provides that violations may subject employers to the following penalties: (1) $500 for the first offense; (2) $1,000 for the second offense; (3) $3,000 for the third and any subsequent offense.

Ever-Growing List of State Level Privacy Laws

In the absence of comprehensive privacy legislation at the federal level, this new law is another example of state governments enacting privacy laws to protect their citizens. At this point, Connecticut and Delaware seem to be the only states that have similar laws addressing electronic monitoring by employers in the workplace.

In addition to electronic privacy, privacy issues related to surveillance and biometric problems have become another hot topic. For example, last year, New York City enacted a biometric identifier information law that requires certain retail establishments to have signage posted at the entrance advising patrons of the use of technology to record biometric information, such as facial scans.