On November 8, 2021, New York Governor Kathy Hochul signed legislation (S2628) into law that requires employers who engage in electronic monitoring to provide notice to their employees that they are being monitored. The new law covers telephone conversations, e-mail, and Internet usage.
In a statement accompanying S2628, its sponsors stated that notifying employees of computer monitoring protects employee privacy by making sure that they understand the consequences of inappropriate internet activity. In support, they cited the American Management Agency's 2007 Electronic Monitoring and Surveillance Survey, which found that bosses who fired employees for Internet misuse cited the two main reasons as violation of company policy and excessive personal use.
“By making guidelines of appropriate and inappropriate Internet use public, employees will be less likely to undermine company standards. Companies will retain the right to monitor computer usage, simply with the stipulation that employees are informed of surveillance practices,” the sponsors wrote. “This knowledge will increase transparency within the organization and help to avoid lawsuits and litigation regarding invasion of privacy.”
What Types of Electronic Monitoring Are Covered?
New York’s new electronic monitoring law applies to any private employer with a place of business in New York who 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, telephone, wire, radio, or electromagnetic, photoelectronic or photo-optical systems. The new law expressly exempts electronic monitoring “solely for the purpose of computer system maintenance and/or protection.”
What Are New York Employers Required to Do?
The new law requires prior written notice upon hiring to all employees, informing them of the types of electronic monitoring which may occur. The notice must be in writing, in an electronic record, or in another electronic form, and acknowledged by the employee either in writing or electronically. Employers must also retain acknowledgment of the employee’s receipt of the notice.
Employers are also obligated to 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.” The notice must advise employees:
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.
What Are the Penalties for Non-Compliance?
The new law authorizes New York Attorney General to enforce its provisions. The maximum civil penalties for violations range from $500 for the first offense, $1,000 for the second offense, and $3,000 for the third and each subsequent offense.
When Does the New Law Take Effect?
The new law will become effective 180 days after signing, on May 7, 2022.
If you have questions, please contact us
If you have any questions or if you would like to discuss the matter further, please contact me, Ajoe Abraham, or the Scarinci Hollenbeck attorney with whom you work, at 201-896-4100.