NY Requires Employee Consent for Electronic Monitoring

On November 8, 2021, Governor Kathy Hochul signed a bill into law that amends the New York State Civil Rights Law to create section 52-c. The new law requires private New York employers to inform employees if they will be subjected to electronic monitoring.

To be clear, the new law does not prohibit employers from monitoring their employees’ electronic communications. They can still lawfully monitor telephone, computer, and internet use provided they inform the employee that they are doing so.

The law goes into effect on May 7, 2022 and applies to all private employers of any size who have a “place of business” in New York. It covers in-person and remote employees.

Employers must provide electronic, written notice to employees “upon hiring.” The employee must acknowledge the notice in writing or electronically. The employer must also post the notice of electronic monitoring in a conspicuous place that is easily visible to all employees.

Electronic monitoring includes the monitoring or interception of an employee’s telephone conversations, emails, or internet access or use by any electronic device. The new law does not apply to processes designed solely for the purpose of computer system maintenance and/or protection, such as those that manage the type or volume of emails, voicemails, and internet use.

The new law is meant to increase transparency about what is and is not acceptable internet use during work hours. Lawmakers have also said that it will help avoid lawsuits and litigation about invasion of privacy and will allow employees to make informed decisions about their internet use and its potential ramifications.

The New York State Attorney General will be responsible for enforcing the new law. Employers who violate the law will be subject to maximum fines of $500 for a first offense, $1,000 for a second offense, and $3,000 for a third and each subsequent offense. Employees do not have a private right of action under the law.

Before the law goes into effect on May 7, 2022, employers should determine whether they engage in electronic monitoring practices that trigger the notice obligations and enact new or amend current policies to ensure compliance. As a reminder, the employer must notify new hires and existing employees of the electronic monitoring in writing and obtain and save their written acknowledgment of receipt. The employer must also post the notice in a conspicuous place. The policy should indicate that its intent is to comply with New York State Civil Rights Law § 52-c.

The new electronic monitoring law is not the first of its kind. Under federal law, the Electronic Communication Privacy Act of 1986 (ECPA) prohibits the intentional intercepting of oral, wire, and electronic communications. The ECPA provides for certain exceptions like the business purpose exception—which allows for monitoring done for legitimate business reasons—and the consent exception—which allows for monitoring by apps and other means if the employee consents to such monitoring. Violation of the ECPA can lead to civil and/or criminal penalties.

Similarly, New York law prohibits or limits video and audio surveillance under certain circumstances. Employers cannot intentionally overhear or record a conversation or discussion without the consent of at least one party that is present. Video surveillance in restrooms and locker rooms is also prohibited. Violation of these laws constitute criminal offenses.

If you have questions about the new employee monitoring law, please contact us.

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