New Electronic Monitoring Disclosures for New York Employers

November 18, 2021 Many employers have already acted wisely by adopting policies to advise their employees that the employer reserves the right to engage in electronic monitoring of employee communications by phone and email, as well as employee internet access and usage. Effective May 7, 2022, New York employers will be obligated to adopt and enforce such policies if they do engage in such monitoring.

By: Peter T. Shapiro

Many employers have already acted wisely by adopting policies to advise their employees that the employer reserves the right to engage in electronic monitoring of employee communications by phone and email, as well as employee internet access and usage. Effective May 7, 2022, New York employers will be obligated to adopt and enforce such policies if they do engage in such monitoring.

New York Governor Kathy Hochul has signed a new law that requires employers to provide notice to employees of such electronic monitoring. Employers must provide the notice to new employees at the time of hiring in either hard copy or electronic form and the employer must obtain the employee’s written or electronic acknowledgment of the policy. In addition, employers must post the notice in a conspicuous place readily available for viewing by employees. Presumably, employers would be well advised to obtain written acknowledgments of the policy from incumbent employees as well, and to add the notice to their employee handbooks.

The requirements of this law do not apply to processes that are: designed to manage the type or volume of incoming or outgoing electronic mail or telephone voice mail or internet usage; not targeted to monitor or intercept the activities of a particular individual; and performed solely for the purpose of computer system maintenance or protection.

The New York Attorney General has authority to enforce this new law. Noncompliant employers are subject to a maximum civil penalty of $500 for the first offense, $1,000 for the second offense, and $3,000 for the third and each subsequent offense. While those penalties are not particularly severe, an employer cited for a potential penalty will necessarily incur attorneys’ fees to address the matter. Additionally, there are non-economic consequences when employees become disgruntled upon learning that their electronic communications have been monitored unlawfully. Accordingly, all private employers who have any New York employees should take the necessary steps to comply.

Employers should also keep in mind that federal laws may apply to prohibit the interception of electronic communications, including communications on employee’s personal devices. Before launching or continuing a practice of monitoring employee communications, employers should examine whether the proposed policies may implicate any federal prohibition.

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