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New York To Require Private Employers to Notify Employees of Electronic Monitoring

On November 8, 2021, New York Governor Kathy Hochul signed an amendment (A.430 / S.2628) to the state’s Civil Rights Law which adds a new provision requiring employers who engage in electronic monitoring to notify workers of such. The amendment takes effect 180 days after the governor’s signature (May 7, 2022).

Who Does the Law Apply To?

The law applies to any private employer with a place of business in New York that “monitors or otherwise intercepts” any employee’s telephone conversations, emails, or internet access or usage by “any electronic device or system.”

What Is Required Under the Amendment?

The amendment requires that private employers who engage in such monitoring of employees must provide written notice upon hire to all employees who are subject to electronic monitoring; employers must also obtain a signed acknowledgment of having received the notice from the new hire.

Employers are not required to provide the notice and/or obtain an acknowledgment from existing employees.

What are the Acceptable Forms of Notice?

This notice must be drafted by the employer and provided in writing or in an electronic record and must be acknowledged by the employee in writing or electronically. The notice must advise 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 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 post the notice of electronic monitoring “in a conspicuous place which is readily available for viewing by its employees who are subject to electronic monitoring.”

Are There Any Exceptions?

The law does not apply to surveillance by video cameras and location tracking (i.e., GPS), and computer system maintenance and/or protection, such as data loss prevention (DLP) software and software that monitors internet traffic for malicious software are also excluded. Further, review of stored emails and voicemails left in an employee’s corporate voicemail box falls outside the law’s notice requirement.

Non-Compliance

There is no private right of action for violations of this statute; however, New York’s attorney general is authorized to enforce this statute. The amendment additionally imposes fines on employers violating the new requirement of a maximum of $500 for the first offense, $1,000 for the second offense, and $3,000 for the third and each subsequent offense.

Next Steps for Employers

Employers should review their monitoring practices and determine whether those activities fall within the scope of the notice requirement; identify which new hires will be subject to electronic monitoring and decide whether it will provide notice of electronic monitoring to only those employees or if it makes more sense to distribute the notice more broadly to all employees; consider including in the notice what types of monitoring the business is specifically engaging in; update any applicable new hire checklists that are used for employee onboarding to ensure all new hires receive and acknowledge the notice; and ensure retention of the notice and the employee’s acknowledgement in the event of a non-compliance compliant that may lead to an investigation.

In addition to providing and posting the notice as required, private employers covered by the law should also consider including a policy in their employee handbook in response to the amendment or the notice itself. If the notice is included in the employee handbook, employers should ensure they obtain a signed acknowledgment regarding the notice which is separate from the overall employee handbook acknowledgement.

HR Works, Inc., headquartered at 200 WillowBrook Office Park in Fairport (Rochester), New York, with an office in East Syracuse, is a human resource management outsourcing and consulting firm serving clients throughout the United States. HR Works provides scalable strategic human resource management and consulting services, including: affirmative action programs; benefits administration outsourcing; HRIS self-service technology; full-time, part-time and interim on-site HR managers; HR audits; legally reviewed employee handbooks and supervisor manuals; talent management and recruiting services; and training of managers and HR professionals.