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December 10, 2021

Guide For Business Owners On Electronic Monitoring In The Workplace

Guide For Business Owners On Electronic Monitoring In The Workplace

Joseph D. Nohavicka

On November 8, 2021, the governor signed a bill that amends New York State’s Civil Rights Law (will be Section 52-c), to require private employers not only to notify employees of electronic monitoring but also to obtain their written acknowledgment of the notice. But the amendment will become effective on May 7, 2022. (The law does not apply to location tracking, which is especially important for employers with vehicle fleets or large numbers of field employees).

Electronic-Monitoring

Who does this apply to?

The law applies to all employers in New York State regardless of size.

Going forward, employers must provide the notice to employees “upon hiring.”  We, however, recommend that the notice be provided to all employees and that the receipt of the notice be acknowledged in writing.

What about remote employees that use their own personal device?

Employers that allow employees to use a personal device for work, should note that the notice requirement is not limited to employees who use employer-issued computers and mobile devices.  Thus, employers must provide the notice to any employee who uses a personal device to transmit e-mail through the corporate e-mail server or to access the internet through the employer’s internet connection  

Compliance

  • Employers that monitor their employees’ telephone calls, e-mail, or internet access or usage must provide written notice to employees who are subject to the monitoring and obtain their written acknowledgment of the notice.  The notice can be provided, and the acknowledgment obtained, electronically. 
  • Employers must also post the notice in a conspicuous place that is readily accessible to employees subject to electronic monitoring.  Employers can post this notice, for example, where they post all other legally required, employment-related posters/notices.

Content of the Notices

Employers “shall advise” relevant employees 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 law does not specifically address whether this notice must be delivered as a stand-alone document or whether the notice could be included in a larger document, such as an employee handbook.  However, the requirement that relevant employees specifically acknowledge the notice suggests that, at a minimum, if the notice is included within a larger document, employers should require an acknowledgment that is specific to the notice of electronic monitoring.

Enforcement

There is no private right of action for violations of this statute; however, New York’s attorney general is authorized to enforce this statute.  The statute provides fines for violations of up to $500 for the first violation, $1,000 for the second violation, and $3,000 for the third and each subsequent violation.  

Advice for all business owners

We advise that all business owners should take the following steps:

  • Determine the scope of their electronic monitoring activities and identify which of those monitoring activities fall within the scope of the notice requirement.
  • Identify those new hires that will be subject to electronic monitoring and decide whether it will provide notice of electronic monitoring to, and obtain an acknowledgment from, only those employees, or whether to distribute the notice more broadly for employee relations and deterrence reasons.
  • Draft the notice language in a way that balances legal compliance, transparency, deterrence, and employee relations concerns.
  • Develop a process for ensuring that all relevant new hires receive and acknowledge the notice of electronic monitoring; and
  • Ensure each version of the notice presented to employees as well as acknowledgments are stored in a way that allows for easy production in the event the New York attorney general ever was to investigate allegations of non-compliance.

Read the full bill here.

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