Effective May 7, 2022, all New York employers will be required to provide notice to employees of any employer monitoring of work phones, emails, or Internet use. This new law amends the New York Civil Rights Law (a law different than New York’s anti-discrimination law) and, according to the legislature, is designed to “increase transparency within the organization,” “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, while supporting companies’ ability to monitor Internet activity within their organization.”
Notice must be provided in written form to all new hires who are subject to electronic monitoring, and employers must obtain a written acknowledgement from each new employee who is provided such notice. This written notice and acknowledgement can also be in electronic form. The law does not require that current employees receive such written notice and provide an acknowledgment of receipt, but employers are required to post notice of electronic monitoring covered under this law in a conspicuous place, which is readily available for viewing by employees subject to electronic monitoring. The Attorney General, who is tasked with enforcing this law, has not released any template notices that employers can use. Absent the release of any such documents—which we will be monitoring ahead of the May 7, 2022 effective date—employers should create their own notice and onboarding materials, which could also be included as part of an employee handbook.
The notice provided by New York employers should inform employees that any and all telephone conversations or transmissions, electronic mail or transmissions, or internet access or usage by an employee of 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.
There are carve outs to this notice requirement. Specifically, employers do not have to provide notice for—and this law does not apply to—processes that are: (1) designed to manage the type or volume of incoming or outgoing electronic mail or telephone voice mail or internet usage; (2) not targeted to monitor or intercept the electronic mail or telephone voice mail or internet usage of a particular individual; and (3) performed solely for the purpose of computer system maintenance and/or protection.
The Attorney General is authorized to enforce this new law, which does not create a private right of action for impacted employees. An employer may face civil penalties up to a $500 for a first offense, $1,000 for a second offense, and $3,000 for a third and each subsequent offense.
While most employers already provide some type of notice of monitoring to their employees, they should plan to come into compliance with this new workplace notice obligation by May 7, 2022. To that end, employers should consider taking the following steps:
- Revise any pre-existing electronic monitoring practices and determine what changes, if any, are needed to comply with this law by the May 7 effective date.
- Be on the lookout for the release of any notice or onboarding templates in advance of the May 7 compliance deadline, but otherwise be prepared to draft workplace notice and onboarding materials reflecting the electronic monitoring covered by this law if no such templates are released.
We will monitor for the release of any additional guidance or relevant templates, and will update accordingly.