Adams Leclair Employment Alert

New York State employers are now required to put employees on notice prior to monitoring emails, internet use, and phone calls.

On November 8, 2021, New York State Governor Hochul signed Senate Bill S2628, amending the New York Civil Rights law by adding new Section 52-c, requiring employers to provide employees with notice of electronic monitoring. The new notice requirements became effective on May 7, 2022.

What Counts as “Electronic Monitoring”?

Under the new law, “electronic monitoring” includes any monitoring or intercepting of:

• Emails
• Internet access and use
• Videoconferencing platforms, such as Zoom meetings
• Phone calls
• Text messages
• Any electronic device or system, including but not limited to, “computer, telephone, wire, radio, or electromagnetic, photoelectronic or photo-optical systems.”

While the new law does not specifically define the terms “monitor,” “intercept,” “transmission,” or “photoelectronic or photo-optical systems,” the best practice is to assume this law applies to the review or collection of all electronic communications and devices. 

This law is not explicitly limited to employers’ systems or applications. There remains uncertainty concerning applicability and implementation of notice requirements where an employee may have access to an employer’s vendor’s system or device.

Who is Impacted?

All private employers with a place of business in New York State, regardless of the number of employees, are required to comply. While the law does not specifically define “place of business” or “employee,” and does not address whether it applies to remote workers out of state or to an out of state employer with a remote worker in New York, the best practice would be to assume that the law applies in both situations.

What Counts as “Notice”?

Employers must: (1) provide written notice of monitoring to new employees and obtain their written acknowledgment; and (2) post a general notice for all employees in a conspicuous place. 

What’s in the Written Notice?

The notice should advise that: “any and all telephone conversations or transmissions, electronic mail or transmissions, or internet access or usage by an 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 subject to monitoring at any and all times and by any lawful means.” 

The notice may be contained in a single unique document or included in an employee handbook. In an effort to comply with the law’s goal of transparency, employers may consider providing both a specific document delivering notice and including the notice in employee handbooks and policies.

How is the Notice Distributed?

You must provide the notice to all new employees and obtain an acknowledgement that the employee received the notice.  The employee’s acknowledgement may be via a handwritten signature or by electronic means.

In addition, employers must post and display the electronic monitoring notice “in a conspicuous place which is readily available for viewing” by all employees subject to monitoring.

While the written notice and acknowledgment requirement only applies to new employees, employers may consider providing all employees with written notice and keeping a record of written acknowledgment of the notice. 

Enforcement and Penalties

The new monitoring law provides New York’s Attorney General with the power to enforce compliance. A violation carries a maximum civil penalty of $500 for the first offense, $1,000 for the second offense, and $3,000 for each subsequent offense. 

Note that under federal law, employers are prohibited from intentionally intercepting employee-communications unless the monitoring is done for legitimate business reasons or with the employee’s consent, and violations are subject to fines and imprisonment, depending on the context of the offense. ((Electronic Communications Privacy Act and Stored Communications Act (18 U.S.C. §§ 2701-2712).), 

What Should Employers Do?

Employers should consider taking the following steps:

• Review your current policies and employee handbook to determine whether you have an electronic monitoring policy in place and, if so, whether it complies with the notice requirement in the new law;
• Update your policy/employee handbook if necessary;
• Post the policy in a conspicuous location at your physical premises, and in any electronic policy files available to employees;
• Advise all people responsible for onboarding new employees of this requirement;
• Update onboarding policies to make sure that the policy, whether provided separately or within an employee handbook, is distributed to all new hires, and that new hires provide a written acknowledgement, either in writing or electronically; 
• Determine whether to distribute the new policy to existing employees and obtain all employees’ written acknowledgement of receipt; and
• Maintain copies of employees’ acknowledgements in their personnel files for use in the event of a complaint or investigation. 

Alana Bernhardt, J.D., assisted in preparing this client update.

Attorney Advertising:  The enclosed materials have been prepared for general informational purposes only and are not intended as legal advice.