Beginning May 7, 2022, private employers in New York must:
- Provide written notice upon hiring to all employees if they monitor or intercept employee electronic activity (and employees must acknowledge receipt); and
- Post an electronic monitoring disclosure notice in a conspicuous place.
On November 8, 2021, New York Governor Hochul signed legislation amending the state’s existing Civil Rights Law which will now require private employers to notify employees of electronic monitoring of their workplace electronic communications beginning May 7, 2022. This law does not prevent an employer from engaging in the monitoring of employees. The stated purpose of this new requirement is to “permit employees to make informed decisions about their internet use with full knowledge of the ramifications of their actions, while supporting companies’ ability to monitor internet activity within their organization.”
The law applies to any private employer with a place of business in New York State that “monitors or otherwise intercepts” an employee’s “telephone conversations or transmissions, electronic mail or transmissions, or internet access or usage of or by any electronic device or system.” If a New York employer does not engage in such monitoring they are not subject to the requirements of this law.
The law does not define which employees are covered by this law. Therefore, it is unclear whether the law’s disclosure requirement is intended to cover all employees of an employer with a New York location/headquarters or only employees performing work for the employer within New York. Employers should consult with legal counsel given this uncertainty to determine their compliance obligations.
Types of Electronic Monitoring Covered
The law states that disclosure is required if an employer “monitors or otherwise intercepts telephone conversations or transmissions, electronic mail or transmissions, or internet access or usage of or by an employee by any electronic device or system, including but not limited to the use of a computer, tele-phone, wire, radio, or electromagnetic, photoelectronic or photo-optical systems.” The law does not provide specific examples of the types of electronic monitoring referenced and employers should consult with counsel to determine their compliance obligations based on their employee monitoring activities.
The law specifically states that the disclosure requirement does not apply to “processes that are designed to manage the type or volume of incoming or outgoing electronic mail or telephone voice mail or internet usage, that are not targeted to monitor or intercept the electronic mail or telephone voice mail or internet usage of a particular individual, and that are performed solely for the purpose of computer system maintenance and/or protection.” The law does not provide specific examples of excluded practices and employers should consult with counsel to determine their compliance obligations based on their specific monitoring activities.
Disclosure Notice and Distribution Requirements
Beginning May 7, 2022, covered New York employers must provide prior written notice of electronic monitoring of workplace communications, upon hire, to all employees who are subject to such monitoring. It is not clear whether the affirmative notice requirement also applies to existing employees. Practically speaking, covered employers are encouraged to take a consistent approach and advise all employees who are subject to electronic monitoring and obtain any required acknowledgments. Employers should review their approach for existing employees with their legal counsel given the uncertainty surrounding this obligation.
Content of Notice
To date, the law does not contain a model notice, nor does it specify particular verbiage that must be included in the notice, though it does state that notice must inform employees 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.” Employers should consult with counsel to determine how to approach the content of the required notice based on their specific employee monitoring activities.
Distribution and Employee Acknowledgment
Employers may provide the required notice in writing or electronically upon hire and employees may acknowledge receipt of the notice in the same manner. Covered employers must also post a notice of electronic monitoring in a conspicuous place which is readily available for viewing by its employees who are subject to electronic monitoring. Presumably, employers can meet this posting requirement by electronic means, however the law is silent on that issue.
It is important to note that while some employer handbooks may already contain a general disclosure about the employer’s right to access electronic activity while using systems or equipment furnished by the employer, these policies alone will not satisfy the requirements if the employee is not required to acknowledge it in writing (or electronically).
The new law is enforceable by the New York State Attorney General and employers who violate the law may be subject to civil penalties of $500 for a first offense, $1,000 for a second offense, and $3,000 for the third and each subsequent offense.
Employers should prepare to comply with the law when it takes effect on May 7, 2022, including distributing and posting the required notice, obtaining employee acknowledgments and adding an electronic monitoring policy to their employee handbooks, as necessary.
Sequoia One Clients Only: It is recommended employers subject to this requirement provide their employees with a stand-alone policy and acknowledgment form for tracking purposes, as well as include the policy in the next employee handbook update. Please let your dedicated HR Business Partner know if you will need to insert this policy into your handbook.
Disclaimer: This content is intended for informational purposes only and should not be construed as legal, medical or tax advice. It provides general information and is not intended to encompass all compliance and legal obligations that may be applicable. This information and any questions as to your specific circumstances should be reviewed with your respective legal counsel and/or tax advisor as we do not provide legal or tax advice. Please note that this information may be subject to change based on legislative changes. © 2022 Sequoia Benefits & Insurance Services, LLC. All Rights Reserved