New York’s law requires employers to provide notice for a broader range of electronic monitoring practices than the federal Electronic Communications Privacy Act of 1986
New York’s new digital workplace monitoring law takes effect May 7, 2022, and amends the state’s civil rights law to require employers to provide notice of electronic monitoring to employees. It was signed into law by Governor Kathy Hochul soon after the new state whistleblower law.
The law requires employers to provide written notice upon hire to all employees detailing the types of electronic monitoring the employer may use. Employers must obtain employee acknowledgement of this notice, either via hard copy or electronic means. Employers must also post a similar notice in a conspicuous location.
The law covers monitoring of “any electronic device or system,” which includes computer, telephone, internet and email systems. The law does not apply to processes “designed to manage the type or volume or incoming or outgoing” communications or internet usage, so long as such processes “are not targeted to monitor or intercept” the communications or internet usage information “of a particular individual” and are “performed solely for the purpose of computer system maintenance or protection.”
Employers providing notice as required under this law must advise employees that:
[A]ny 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, photo-electronic, or photo-optical systems may be subject to monitoring at any and all times and by any and all lawful means.
All employers, regardless of size, with a “place of business within New York State” are subject to the law. However, the law does not address coverage of employers who have only remote operations within the state, or whether remote workers living outside the state are covered.
Violations are subject to civil penalties, with a first offense resulting in up to a $500 penalty; second offense up to $1,000; and third and each subsequent offense up to $3,000.
New York’s law requires employers to provide notice for a broader range of electronic monitoring practices than the federal Electronic Communications Privacy Act of 1986 (ECPA). The ECPA provides that employers may monitor employee electronic communications only on certain grounds. One ground is employee consent, which is why many employers already provide some sort of notice and acknowledgement before engaging in electronic monitoring. The other ground for monitoring is the business use exception, a narrow exception permitting employers to intercept employee communications for business-related reasons without employee consent. New York’s law provides a much narrower exception than the federal business use exception, only excluding from coverage companywide monitoring for system maintenance and protection that is not aimed at any particular individual. New York’s law also is broader than the ECPA in its explicit coverage of internet usage, where the ECPA’s applicability to internet usage is an unsettled topic. Finally, unlike federal law, New York’s new law is written such that location monitoring of internet access via mobile device or laptop is arguably covered and thus subject to the notice requirement.
These differences from federal law reflect the New York Legislature’s clear intention to require notice not only for traditional communications, as covered under federal law, but also to address new and emerging forms of employee monitoring and surveillance, such as productivity monitoring software.
What This Means for Employers
While many New York employers are likely already providing notice of monitoring and/or that communication over employer systems are not private, under the new law, employers should provide notice of electronic monitoring to employees upon hire, update their notices with the new, required language quoted above, add an updated notice to their workplace postings and ensure they obtain employee acknowledgements, since these are explicit requirements under New York law.
For More Information
If you have any questions about this Alert, please contact Eve I. Klein, Katelynn Gray, Jenna M. Decker, Maria Cáceres-Boneau, any of the attorneys in our Employment, Labor, Benefits and Immigration Practice Group or the attorney in the firm with whom you are regularly in contact.
Disclaimer: This Alert has been prepared and published for informational purposes only and is not offered, nor should be construed, as legal advice. For more information, please see the firm's full disclaimer.