New York State Passes Phone, Email, and Internet Monitoring Notice Law
On November 8, 2021, New York Governor Kathy Hochul signed a bill into law which requires employers to provide notice to employees of the employer’s electronic monitoring of telephone, email, and internet access and usage. This law will go into effect on May 7, 2022.
Under this law, all private employers with a place of business in New York State must provide written notice to all new employees, upon hire, if they plan to monitor or intercept telephone or email communications or internet access or usage by the employee. The statute requires employers to advise 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.” In addition to providing this notice to employees, either in hardcopy or electronic form, and obtaining the employee’s acknowledgment of the notice, employers are also required to post this notice in a conspicuous place that is readily available for viewing by employees subject to such monitoring.
This law is limited in scope and does not apply to processes that are designed to manage the type of volume of incoming or outgoing electronic mail or telephone voice mail or internet usage, that are not targeted to monitor or intercept the electronic mail or telephone voice mail or internet usage of a particular individual and that are performed solely for the purpose of computer system maintenance and or protection. The law does not appear to create a private right of action, but the Attorney General may enforce the law, and an employer who violates this law will be subject to a maximum civil penalty of five hundred dollars for the first offense, one thousand dollars for the second offense, and three thousand dollars for the third and each subsequent offense.
Employers should consider how they plan to provide written notice to their employees, upon hire, of these practices if they partake in them or plan to do so in the future. Employers also should prepare to post this notice in a conspicuous place where it is readily available for employees to view. Employers who plan to still have employees working remotely in May of 2022 should also consider posting this notice on their intranet in order to make it readily available to employees who are still working remotely. Individuals with questions should feel free to contact Caroline Secola at csecola@fglawllc.com or any other attorney at the Firm.
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