New York Employers and Employees:
Beware of Electronic Monitoring in the Workplace
As of May 7, 2022, employers who electronically monitor their employees, including but not limited to, communications via telephone, mail correspondence and internet access or usage, will be required to notify new hires of such monitoring practices. This new law applies to all private companies with a place of business within the State of New York, regardless of size. In short, an employer will no longer be able to monitor its employees’ communications without their knowledge. Nonetheless, the law does not apply to electronic monitoring regarding computer system maintenance or protection. Governor Kathy Hochel signed the Senate Bill S2628 into law on November 8, 2021, which effectively amended the New York Civil Rights Law.
Not only does this update to the law requires employers to notify their current employees of communication monitoring but they also have to provide prior written notice to newly hired employees. Such procedure must be followed if the employer intends to monitor or otherwise capture, intercept, or record telephone communications, email transmissions and/or internet access or usage of or by an employee while using any electronic device or system provided by the employer. A company may include videoconferencing platforms such as Zoom or Teams, as part of the systems they decide to monitor. The notice to employees must be conveyed by the employer in writing or electronic form and must be acknowledged, in writing or electronically, by the employee.
In addition to written notice to new employees, employers are now required to post the notice of electronic monitoring in a conspicuous place, which means a place where all employees will view the notice, including current employees. Note that existing employees do not require individualized written notice, as stated above, which somewhat alleviates the burden on employers to comply with the law.
Governor Kathy Hochul Signs Bill Amending the New York Civil Rights Law
This new law does not provide for a private right of action. However, that does not mean an employee has no recourse. An individual may file suit against his or her employer for a violation of this law. Also, such violation could potentially be subject of a class action lawsuit. Nevertheless, the New York State Attorney General’s Office does have the authority to seek penalties against employers who violate this law in the form of monetary fines ranging between five hundred dollars($500.00) for a first offense, one thousand dollars ($1,000.00) for a second offense, and three thousand dollars ($3,000.00) for a third offense and any subsequent offense thereof.
Employers that engage in electronic monitoring should start adding the appropriate notifications within their new hire internal processes and should place notices in prominent places (virtually and on-premises) for existing employees, in order to inform that they are being electronically monitored. As an added level of protection, it may be wise for a company to update their employee handbook to include electronic monitoring if it is part of the company’s business practices.
If you have any questions or require assistance drafting notices and/or policies regarding the above updates to the law, please contact our office for further guidance.
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