New Requirements for Electronic Monitoring of Employees in New York
Employers and employees alike understand that the right to privacy in the workplace is limited. For example, monitoring employee communications – particularly electronic communications – has become commonplace and a standard practice for most U.S. employers. However, newly passed legislation, in order to promote transparency in the workplace, will require New York employers who engage in electronic monitoring to provide employees with certain notice that they are subject to monitoring.
The new law, which is codified as Section 52-c of the New York Civil Rights Law (“NY Civil Rights Law”), becomes effective on May 7, 2022.
The NY Civil Rights Law applies to all private employers with a place of business in New York State, regardless of size. There are two main requirements once the law goes into effect. Employers must: (1) provide written notice to employees of the monitoring and obtain their written acknowledgment of the notice; and (2) post a general notice in a conspicuous place that is readily accessible to all employees.
First, the written notice and acknowledgment requirement applies only to new employees “upon hiring” where their employer “monitor[s] or otherwise intercept[s]” their employees’ telephone calls, e-mails, or internet access/usage. These new employees must be provided with written notice (which may be in electronic form), and the statute appears to require the specific language to be used in the notice: “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.” Employers must also obtain written acknowledgement of receipt of the notice from the new employee. Existing employees, on the other hand, do not have to be provided with the specific written notice and do not have to provide an acknowledgment. However, employers should consider whether best practice dictates that written notice be provided to all existing employees as well, perhaps as an amendment or addendum to an employee handbook, which is not specifically prohibited by the law.
Second, the posting should contain the same language and should be posted in a conspicuous place that is readily accessible to all employees, for example, where you post all other legally required, employment-related posters and notices.
Businesses need to be aware that the notice requirement may apply to personal devices insofar as it is not limited to employees who use employer-issued computers and/or devices. More specifically, the notice must be provided to employees who use their own device to transmit e-mail through an employer’s e-mail server or to access the internet through the employer’s internet connection.
There are several limitations to this new law.
First, neither the new statute, nor the Civil Rights Law itself define the term “employee.” Thus, employers with remote workers living outside of New York State will need to undertake a fact-specific inquiry to determine the “place of employment” of their remote workers.
Second, the statute expressly excludes from the notice requirement electronic monitoring done solely for computer system maintenance and/or protection (e.g. monitoring internet traffic for malicious software).
Interestingly, there appear to be several methods of workplace surveillance commonly used today by employers that are excluded from the notice and posting requirements. For example, the language of the statute is limited to telephone, e-mail, and internet monitoring. Thus, by intentional omission, the law does not require notice for video surveillance or even for location tracking.
Lastly, and importantly, the specific language of the statute suggests that the notice only is required when employers “monitor or otherwise intercept” telephone, e-mail, and internet communications, which, in the absence of defined terms in the statute saying otherwise, at least implies notice is only needed for real-time monitoring. The notice is not required for the review of already received or stored e-mail or voicemail messages, although it would not be a heavy lift to provide such notice nonetheless.
Enforcement & Penalties:
The new law does not allow an employee to sue an employer for violating the statute. Instead, the New York Attorney General is authorized to enforce the statute. Employers found to be noncompliant may be fined $500.00 for a first offense, $1,000.00 for a second offense, and $3,000.00 for third and subsequent offenses.
Businesses should consider amending their handbooks and providing the required notices and postings ahead of the May 7, 2022 effective date in order to ensure compliance. Matt Miller, Tom Grenke, or any member of the Rupp Baase Employment Law Team is available to answer questions on how this impacts your business specifically.