What Employers Need to Know about New York’s Employee Monitoring Law
In accordance with new Section 52-c of the New York Civil Rights Law, which went into effect on May 7, 2022, New York employers must now notify their employees if they are electronically monitoring workers’ phones, emails, and internet access or usage.
The new law mandates that all private employers must provide notice of their electronic monitoring practices to new employees upon hiring and obtain written acknowledgement of the monitoring. While employers are not required to obtain written acknowledgement from existing employees, they are required to post the notice in a conspicuous place viewable by all employees.
The new law applies to any employer with a place of business in New York State, regardless of size, that monitors or intercepts employees’ email, telephone conversations, or internet access or usage.
Language for the Required Notice:
There is specific language provided in the new law that employers can utilize as a model to meet the notice requirement: “An employee 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.”
Enforcement and Potential Fines
The New York State Attorney General assumes the authority of enforcing the new law by imposing penalties on employers not in compliance. There is no private right of action. Violators are subject to a maximum fine of $500 for the first offense, $2,000 for the second offense, and $3,000 for the third and subsequent violations.
Potential Steps Employers Should Consider
With the new electronic monitoring law, New York employers are strongly encouraged to review their current practices to ensure adherence to the new law. While some employers may already provide some form of notice of electronic monitoring, the changes with the new law may require updates to current onboarding processes for new and recently hired employees as well as revisions to existing employment policies.
Companies should consider the following in order to avoid penalties: (1) review and analyze existing electronic monitoring practices to evaluate whether there are any activities within the scope of the notice requirements; (2) draft notice language that complies with the new law and update company handbooks as well as access or login portals; (3) institute a process for employees that join the company to receive the notice and provide the required acknowledgement as part of new hire paperwork; (3) post a notice for all company employees in a place that is readily viewable for all employees subject to electronic monitoring regardless of hiring date – perhaps on the company’s internal website for remote/hybrid employees and in a common office space for employees on-site; (4) consider implementing a system to collect and store acknowledgement paperwork so that the notice requirement is adequately documented.
Exceptions
Employers should note that the new law does have a few important exceptions to existing processes (1) that manage the volume of inbound or outbound emails, voicemails, or internet usage; (2) which are not targeted to monitor or intercept the electronic mail or telephone voicemail or internet usage of a particular individual; and (3) are performed solely for the purpose of computer system maintenance and/or protection. As a result, the law creates a potential gray area for employers who use employee monitoring systems to achieve multiple goals.
Movement in Other States
It is important to note that local, state and federal laws govern the scope of an employer’s monitoring of an employee’s activities and whether employers are required to inform employees that they are being monitored and obtain acknowledgement of the same. For example, other states, like Connecticut and Delaware, have also enacted laws to require written notice to employees about electronic monitoring. Connecticut Gen. Stat.§ 31-48d; Delaware Del. 6 Code § 19-7-705. After a current employee-related exemption expires in January 2023, the California Consumer Privacy Act will broaden the requirement to provide notice, and grant employees in California the right to request details of private information that has been collected and how it will be used. Recent movement at the New York State level perhaps signals an even greater movement toward transparency in the workplace.
Importantly, the employee monitoring law in New York and other states should be considered in conjunction with unionized worker’s rights established in the National Labor Relations Act.
Questions
If you have any questions regarding the disclosure of electronic monitoring practices, please consult with our Labor and Employment Practice Group. Click here to learn more about the services Bleakley Platt & Schmidt’s Labor and Employment Practice Group has to offer.