New York State Requires Notice of Electronic Monitoring

Last month, New York Governor Hochul signed into law a bill that will require employers to notify new employees of electronic monitoring of telephone, email and internet access and usage, and to obtain their written acknowledgement of the notice. This new law (the “Act”), which goes into effect on May 7, 2022, applies to all private employers, regardless of size, with a place of business in New York State.

Under the Act, employers who “monitor or otherwise intercept” employee telephone conversations, emails, or internet access or usage by means of any electronic device or system must:

1. Provide written notice (either in hard copy or electronic form) “upon hiring” to employees subject to the monitoring and obtain written acknowledgement of the notice by the employees, either in writing or electronically; and
   
   
2. Post the notice in a “conspicuous place which is readily available for viewing” by employees subject to such monitoring.

Notably, the Act does not apply to monitoring processes that: (i) are designed to manage the type or volume of incoming or outgoing electronic mail or telephone voice mail or internet usage; (ii) are not targeted to monitor or intercept the electronic mail or telephone voice mail or internet usage of a particular individual; and (iii) are performed solely for the purpose of computer system maintenance and/or protection.

New York’s attorney general is authorized to enforce this new law. Employers who violate the law will be subject to fines ranging from up to $500 for a first offense, $1,000 for a second offense, and $3,000 for a third and each subsequent offense.

Take-Aways for Employers:
To ensure timely compliance with this new law, New York employers should consider the following steps in consultation with their legal counsel:

• Review their current electronic monitoring practices and determine if any are subject to the Act’s notice requirements;
  
  
• Draft appropriate and legally compliant notice and acknowledgement language, if necessary;
  
  
• Develop a protocol to ensure (i) that new employees who will be subject to such monitoring practices receive and acknowledge the notice, and (ii) that these records are properly maintained; and
  
  
• Post any required notice in a conspicuous place for viewing by employees subject to electronic monitoring by the effective date of the Act.

If you have questions about the Act or how it may apply to your business, please contact Natasha Lipcan at [email protected] or 203-820-6754.

Natasha Lipcan (New York team) is an employment law attorney with more than 20 years of experience representing private employers in a broad range of employee-related matters. She handles a wide range of employment issues, including employment law compliance, organizational change, diversity and inclusion, employment-related agreements, arbitrations and litigations, wage and hour, workplace training and policies, and recruiting, hiring, managing and terminating employees.