Special thanks to Guest Contributor Harry Valetk.
In early May, private sector employers in New York will face new disclosure requirements for electronic monitoring of employees. Beginning May 7, 2022, New York will join Connecticut and Delaware among the states that now require employers to provide written notice to new hires who are subject to electronic monitoring. These new disclosure requirements come after Governor Kathy Hochul signed into law amendments to Civil Rights Chapter 6, Article 5, Section 52-C*2.
Here’s what New York employers need to know now about the new law:
Who is covered under the law? All private employers with a place of business in New York regardless of size. “Employer” is defined as any individual, corporation, partnership, firm, or association with a place of business in the state (not including the state or any political subdivision of the state).
What does the law require? In practice, the law requires employers to (1) provide employees with a notice of electronic monitoring, (2) obtain proof of acknowledgement, and (3) prominently post the notice for all to see.
Notice of electronic monitoring. Any employer who monitors or otherwise intercepts the following must comply:
- Telephone conversations or transmissions,
- Electronic mail or transmissions, or
- Internet access or usage of or by an employee of any electronic device or system (including the use of a computer, telephone, wire, radio, or electromagnetic, photoelectronic, or photo-optical systems).
And while the law does not specifically define “intercept,” it would be reasonable for employers to rely on the definition found in the Federal Wiretap Act (i.e. “intercept” means the aural or other acquisition of the contents of any wire, electronic, or oral communication through the use of any electronic, mechanical, or other device).
Covered employers must give prior written notice upon hiring to all employees subject to electronic monitoring. The written notice must inform employees that all of this activity may be subject to monitoring “at any and all times and by any and all lawful means.”
Employee acknowledgment. Employers must also obtain acknowledgement from employees, either in writing or electronically, that they have received the legally required notice.
Posting in a conspicuous place. Finally, employers must also post the notice of electronic monitoring “in a conspicuous place which is readily available for viewing” by the employees who are subject to monitoring. The law does not, however, state whether the posting is to be physical or electronic.
What exceptions apply? Employers are not required to comply with the law’s disclosure obligations if the monitoring activities:
- Are designed to manage the type or volume of incoming or outgoing electronic mail, telephone voice mail, or internet usage;
- Are not targeted to monitor or intercept the electronic mail, telephone voice mail or internet usage of a particular individual; and
- Are performed solely for the purpose of computer system maintenance and/or protection.
What are the penalties for violations?
Though employees do not have a private right of action for violations of the law, the New York attorney general is authorized to enforce the law, with penalties that can quickly add up. Employers will be subject to a maximum civil penalty of $500 for the first offense, $1,000 for the second offense and $3,000 for the third and each subsequent offense. It is unclear whether the failure to notify an employee and failure to obtain the employee’s acknowledgment are separate violations.
Are there employee monitoring laws in other states?
While employee monitoring laws are new to New York, there are a few other states with employee monitoring laws already on the books. For example, Connecticut employers engaging in electronic workplace monitoring are required to provide written notice to employees and post the notice in a conspicuous place (see Conn. Gen. Stat. Ann. § 31-48d(b)(1)). Additionally, Delaware employers generally cannot monitor employees’ telephone or computer use without providing advance notice of the monitoring-either daily through electronic notice each time the employee accesses the employer-provided email or internet, or through a one-time notice (in writing, in an electronic record or another electronic form) and acknowledged by the employee in writing or electronically (see 19 Del C. § 705(b)). And in California, employers are prohibited from eavesdropping on or recording employees’ private telephone, email, or in-person conversations without prior consent by all participants (see Cal. Penal Code §§ 631(a) and 632(a)).
What should New York employers do now?
There are several steps New York employers should take now to prepare.
- Update policies and procedures to ensure that all new hires receive the required notice and provide the necessary acknowledgment, and that the posting requirement is met. This includes determining how employers will provide notice, collect and store employee acknowledgement forms, and conspicuously post notice so that employees subject to electronic monitoring can readily view it (which may include, for instance, posting on an intranet site). In addition, consider updating any acceptable use and electronic communication policies to reflect the new law.
- While the law specifically applies to new hires, employers would be wise to also follow these steps for current employees subject to electronic monitoring-before the May 7, 2022 effective date. Work with internal data privacy teams to ensure all employees subject to monitoring are included in the process.
- For a seamless transition come May, train managers / supervisors and HR now about the new law and new policies and procedures.
- As always, employers planning to implement new employee monitoring tools or processes can help manage risks by anticipating what notice(s) may be necessary.
To read the full provisions of the new law, click here. If you have any questions about this enforcement action or any other employment or data privacy law, please contact your Baker McKenzie employment and data privacy lawyers.