Starting May 7th, all private employers in New York who monitor, or want to reserve the right to monitor, employee telephone calls, emails or internet use must: (1) give all new hires some form of written notice of electronic monitoring for the new hire to sign/acknowledge; and (2) post a similar notice in a conspicuous place that is readily available for viewing by employees subject to electronic monitoring.
These notice and posting obligations are required by New York Civil Rights Law Section 52-c (https://www.nysenate.gov/legislation/bills/2021/S2628), which was signed by Governor Hochul on November 8, 2021, with an effective date of May 7, 2022. The law will be enforced by the New York Attorney General and provides for civil penalties for violations not to exceed $500 for a first offense, $1,000 for a second offense, and $3,000 for subsequent offenses.
As far as the content of the required notice/posting, the statute does not proscribe specific required language and thus far we have not seen any sample posting from the Department of Labor. The text of the law states that for the purposes of the notice requirement, “an employee shall be advised 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, photoelectric or photo-optical systems may be subject to monitoring at any and all times and by any lawful means.” One viable approach for employers could be to use this language for the notice and posting. Employers may also be able to meet the notice or posting requirement with their current or revised policies addressing electronic monitoring, which should be reviewed to ensure they meet the obligations now required by this law.
Harter Secrest & Emery’s Labor and Employment attorneys are here to answer any questions you may have. Please contact any Labor and Employment team member at 585.232.6500 or 716.853.1616.