On November 8, 2021, New York Governor Kathy Hochul signed a invoice in law (the “Act”) that will require employers to provide written notice to employees before engaging in electronic monitoring of access or use of telephone, e-mail and the Internet. The law will come into force on May 7, 2022. The main points to remember are summarized below.
The law applies to any employer with a facility in New York State, regardless of size, that monitors or intercepts telephone, email, and employee Internet access or use.
Notification and acknowledgment requirements
Employers subject to the law must notify employees when they are hired. Notice must be given in writing, in an electronic file or other electronic form, and must be acknowledged by the employee in writing or electronically. Employers must also post the notice prominently.
The law seems to dictate the precise content of these notices. More specifically, the law provides that employees must be informed that:
all telephone conversations or transmissions, letters or electronic transmissions, or access or use of the Internet by any employee by 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 monitored at any time and by any lawful means.
Exceptions and limitations
The Act does not apply to processes that are: (i) designed to manage the type or volume of incoming or outgoing email, voice mail, telephone or Internet usage; (ii) are not targeted to monitor or intercept any particular individual’s email or voice mail or Internet usage; and (iii) are carried out solely for the purposes of maintenance and / or protection of the computer system.
The New York Attorney General has the power to enforce the law. An employer found guilty of breaking the law will be liable to fines of $ 500 for the first offense, $ 1,000 for the second offense and $ 3,000 for the third offense and each subsequent offense. There is no private right of action in the event of a violation of the law.
Points to remember and good practices
While many employers may already provide some form of electronic watch notice in practice, New York employers are soon to provide more transparency as a matter of law. New York now joins Connecticut and Delaware as the only states that require employers to notify their employees that they are under surveillance. While the law doesn’t come into effect for almost six months, New York employers should consider taking the following steps:
Review electronic surveillance practices to determine which activities, if any, fall within the scope of notification requirements under the law;
Write the language of the notice in accordance with the law;
Develop a process to ensure that all new hires receive the notice and provide the required acknowledgment; and
Also consider developing a process for storing employee acknowledgments.
Copyright © 2021, Sheppard Mullin Richter & Hampton LLP.Revue nationale de droit, volume XI, number 323