Employee Monitoring—Are You in Compliance?

Jan 3, 2022 | Blog

New York recently joined Connecticut and Delaware in enacting new legislation to place restrictions on an employer’s right to monitor (surveille?) employee activity on company phones and computers. Last month, New York Governor Hochul signed into law an amendment to the state’s civil rights law. A new Section 52-a provides:

Any employer 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, photo-
electronic or photo-optical systems, shall give prior
written notice upon hiring to all employees who are
subject to electronic monitoring.

“Employer” includes any individual, corporation, partnership, or other similar entity in New York State, excluding the state or any political subdivision of the state. The required notice may be in either hard copy or electronic form, and the employer is required to obtain an acknowledgment of receipt by the employee. In addition, the employer is required to post an appropriate notice of this monitoring requirement in “a conspicuous place which is readily available for viewing by its employees….” The substance of the notices should make it clear to the employee that said monitoring may take place at “any and all time by any lawful means.”

Failure to comply will subject the errant employer to fines ranging from $500 for a first offense to $3,000 for third and subsequent violations. There is no private cause of action; the state attorney general will enforce the law.

There are exceptions. The monitoring notice requirements do not apply to processes “designed to manage the type or volume of incoming or outgoing electronic mail or telephone voice mail or internet usage.” Furthermore, the law does not apply to processes not “targeted to monitor or intercept the electronic mail or telephone usage of a particular individual.” Finally, also exempted from coverage are processes “performed solely for the purpose of computer system maintenance and/or protection.”

While the law does not take effect until May 7, 2022, it would be prudent for all employers in New York State to get in front of this new obligation by commencing the process to provide the necessary notices (and obtaining the necessary employee acknowledgments) well in advance. Moreover, it likewise would be wise for employers to review their existing monitoring policies and procedures and employee handbooks. Necessarily, employees must understand that the employer’s monitoring policies apply equally to remote work so long as the employee is using the employer’s systems. Finally, employers must be cognizant of their obligations that may arise under other laws, such as federal or state wiretap laws, National Labor Relations Board rulings, etc.

If you have questions about how the new monitoring law might impact your business or you would like assistance in drafting the appropriate notices and acknowledgments, please feel free to contact Phil Mortensen.