New York Private Employers Must Notify their Employees of Electronic Monitoring

New Requirements

A new bill signed into law on November 8, 2021, now requires private New York employers who monitor their employees’ electronic communications to provide written notice to employees before engaging in these monitoring activities.

The new requirements include the following provisions:

• Employers who plan to monitor or intercept employees’ telephone, email, and internet usage must provide employees with prior written notice upon hiring.
• The notice must be in writing, electronic record, or other electronic formats.
• The notice must be acknowledged by the employee either in writing or some electronic format
• Employers must display the notice of electronic monitoring in a conspicuous location that all employees can easily view.
• The posted written notice must inform employees that all telephone, email, and internet usage are subject to monitoring by the employer.

This statute applies to remote employees in New York State as long as the employer has a place of business within the state.

The new laws will not prohibit an employer from monitoring their employee’s electronic communications. Employers will retain this right to monitor their employees as long as employees are informed of electronic monitoring in accordance with the new statute.

Who is the Subject of the New Law?

The new statute applies to all private employers with a place of business in New York state, regardless of the company’s size. Employers are defined as individuals, corporations, partnerships, firms, or associations.

Any employer who monitors or intercepts employee communications via telephone, email, or internet usage must adhere to the provisions in this statute.

What Should Employers do?

Employers in New York State must first determine if the new laws will apply to their business. If employers engage in any sort of electronic monitoring practices on their employees, the statute will apply.

Employers subject to the new statute should draft and distribute a notice of electronic monitoring that adheres to the provisions in the statute to all of their employees.

The employer needs to also draft a notice that can be posted in the workplace to inform employees about electronic monitoring practices.

Management should develop a procedure to ensure that all new employees receive notice of the business’s electronic monitoring practices and acknowledge the notice in writing. Management can add these notices to any existing employee handbook that is distributed to new hires. Once acknowledged by the new employee, the acknowledgment should be retained by the employer and filed safely with each employee’s individual file.

When the Law Starts Taking Effect

The new law, which will be codified as Section 52-c of the New York Civil Rights Law, will take effect on May 7, 2022. At this point, businesses should have informed all employees of their electronic monitoring practices. Written notices should be distributed to all employees, and written acknowledgment must be collected from each employee and new hire.

Furthermore, by May 7, 2022, all businesses that engage in electronic monitoring practices should have posted a notice in a conspicuous spot in the workplace that informs employees of electronic monitoring practices.