Pursuant to an amendment to the New York Civil Rights Law that will take effect on May 7, 2022, private-sector employers that monitor their employees’ use of telephones, email, and the internet must notify employees of any electronic monitoring practices.
According to the law’s legislative history, its goal is to “protect employee privacy by making sure that they understand the consequences of inappropriate internet activity.” Click here to read 2021-2022 Regular Sessions NY Senate Bill 26282021 (Jan. 22, 2021).
Below is a list of need-to-know requirements for employers.
What Is Electronic Monitoring?
Under the law, N.Y. Civ. Rights Law § 52-C*2, electronic monitoring includes monitoring or interception of an employee’s (i) communications by phone or email, or (ii) internet access or usage. Click here to read N.Y. Civ. Rights Law § 52-C*2.
Electronic monitoring does not include processes (i) designed to manage the type or volume of communications or activities, (ii) which are not targeted toward a particular individual, and (iii) which are performed solely for computer system maintenance and/or protection.
Whom Does the Law Apply To?
The law applies to any individual, corporation, partnership, firm, or association with a place of business in the state that engages in electronic monitoring. It does not apply to government entities.
What Does the Law Require?
The law requires employers to advise employees subject to electronic monitoring that “any and all telephone conversations or transmissions, electronic mail or transmissions, or internet access or usage . . . 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.” N.Y. Civ. Rights Law § 52-C*2(b).
- For new hires subject to electronic monitoring, employers must give the notice, in writing or electronically, prior to their hiring. The notice must be acknowledged by the new employee, either in writing or electronically.
- For existing employees subject to electronic monitoring, the notice must be posted in a conspicuous place which is readily available for viewing.
What Happens if Employers Fail to Comply?
Employers who fail to comply may be fined by the New York Attorney General up to $500 for the first offense, $1,000 for the second offense, and $3,000 for the third and each subsequent offense. The law does not provide for private lawsuits by employees against their employers.
What Should Employers Do Now?
New York employers should consider whether to post physical notices in the workplace or utilize electronic postings, or both. Employers should also consider incorporating the required notice to new employees in new-hire packets, including the required acknowledgment form, and review existing policies to ensure the language is consistent with the notification required by the new law.
We encourage New York employers to reach out to your regular Saul Ewing LLP attorney to discuss the particulars of your policies and practices and devise strategies for compliance.