New York private employers of all sizes are required to comply with the new law mandating employee consent of electronic monitoring
Employers need to update their onboarding procedure to comply with the new notice requirements
Employers should notify and collect signed acknowledgements from all employees that are subject to electronic monitoring, and post notices in the workplace
On November 8, 2021, New York Gov. Kathy Hochul signed into law A.430/S.2628 (the Act), amending the New York State Civil Rights Law to create a new section 52-c. The Act requires private employers in New York State to provide new employees written notice of any electronic monitoring that the employees will be or already are subjected to.
The Act applies to all private sector employers, regardless of their size, with a place of business in New York.
Employers must provide the notice to employees “upon hiring” and the notice must be in writing, either in an electronic record or other electronic form. Further, the notice must be acknowledged by the employee in writing or electronically. Additionally, employers must also post the notice in a readily available, conspicuous place, where it can be viewed by employees.
Pursuant to the Act, electronic monitoring includes the monitoring or interception of an employee’s telephone conversations, emails, or internet access or usage by any electronic device. However, the Act excludes electronic monitoring conducted solely for the purpose of computer system maintenance and/or protection.
The purported reason for the enactment of the Act is to increase transparency of what is and is not acceptable internet use by employees at work. Lawmakers further claim the Act will “help to avoid lawsuits and litigation regarding invasion of privacy” and “permit employees to make informed decisions about their internet use with full knowledge of the ramifications of their actions.”
The Act authorizes the New York Attorney General to enforce the Act, with maximum fines for violations of up to $500 for a first offense, $1,000 for a second offense, and $3,000 for a third and each subsequent offense. A private right of action for employees does not exist under the law.
The Act is not the first of its kind. Under federal law the Electronic Communication Privacy Act of 1986 (ECPA) prohibits the intentional intercepting of oral, wire, and electronic communications. However, there are exceptions to the ECPA, including but not limited to a business purpose exception and a consent exception. Additionally, Delaware and Connecticut already enacted similar laws requiring employers to provide employees with notice of electronic monitoring.
The Act should also be viewed in conjunction with already existing law in New York that prohibits or limits video and audio surveillance. For example, the intentional overhearing or recording of a conversation or discussion is prohibited, without the consent of at least one party that is present. Additionally, video surveillance in restrooms and locker rooms is prohibited. Notably, these are not civil laws, and are found in the penal code, constituting criminal offenses. Employers engaging in any type of employee surveillance, including audio, video, or electronic, should be familiar with these laws to ensure compliance.
While the Act is not effective until 180 days after it became law (i.e. May 7, 2022), employers should evaluate current electronic monitoring protocols and enact new or amend current policies to ensure compliance. By way of example only, even employers with current electronic monitoring policies are well advised to add a provision memorializing that the intent of the policy is to comply with New York State Civil Rights Law § 52-c. Employers will also want to modify onboarding and recordkeeping processes to ensure compliance. Specifically, employers may want to maintain the acknowledgement forms in employee personnel files, and may even want to maintain a separate standalone binder with all signed acknowledgments so that they are all in one place.
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