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Reminder: New York Requires Prior Notice of Electronic Monitoring

As we previously reported, effective May 7, 2022, New York requires that 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” provide prior notice to employees before engaging in electronic monitoring.

The notice must explain that all phone conversations or transmissions, email or transmissions, or internet access or usage by an employee through any electronic device or system is monitored. The required notice must be in writing, in an electronic record or in another electronic form and acknowledged by the employee either in writing or electronically. Additionally, employers must post the notice in a prominent location that is easily accessible to employees.

The law 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.

Failure to provide the notice and obtain employee consent can result in a civil penalty of $500 for a first-time violation. Subsequent violations will result in higher penalties: $1,000 for a second violation and $3,000 for a third violation.

Next Steps for Employers

Employers should review their monitoring practices and determine whether those activities fall within the scope of the notice requirement; 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 an agency investigation.

In addition to providing and posting the notice as required, private employers covered by the law may also consider including the notice in their employee handbook. If the notice is included in the employee handbook, best practice is to ensure that it is a separate/standalone that is not intertwined with language in other related policies such as acceptable use of company phones, voicemail, computers and email so that it clearly stands out and can be easily understood and consented to by employees. However, employers may make reference to their electronic monitoring practices or reference to the standalone notice in its related policies. Further, 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.

How HR Works Can Help

Current HR Strategic Services clients can reach out to their HR Strategic Partner or the Virtual Helpline for a sample notice and a notice acknowledgement. Non-HR Works clients can contact us at 1-877-219-9062 for immediate assistance.

HR Works, headquartered in Upstate New York, is a human resource management outsourcing and consulting firm serving clients throughout the United States for over thirty years. 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.