Employee monitoring isn’t a new concept. Many companies already notify employees of their practices through their handbooks, standard operating procedures, and alerts that pop up on their computer login screens. But, perhaps reflecting the times with an increase in remote and online work, a new law from New York requires employers to revisit their current policies and practices regarding electronic monitoring.
The New York Civil Rights Law now requires all employers, regardless of their size, with a place of business in New York to notify new employees if they plan to monitor or intercept their telephone calls, emails, or internet access or use. The notice may be in writing or electronic.
The law, which went into effect on May 7, 2022, requires employers to obtain an employee’s written or electronic consent before commencing any monitoring.
Gray Areas Remain in This New York Privacy Law
The new law leaves some room for interpretation — and for questions. For example, the law does not define “employee.” As a result, its language may be broad enough to encompass the monitoring of any independent contractors or volunteers. The law may also extend to employees who are working remotely outside the state for a business headquartered in New York.
Additionally, the law targets monitoring for individual employees, not an entire workplace. So, the law covers any process that monitors or intercepts an individual’s email, voicemail, or web searches. But the statute does not cover any electronic processes designed to help a company maintain or protect its computer systems. Therefore, any process that manages the volume of an entire company’s emails, telephone voicemails, or internet usage falls outside the law.
What Employers Must Post to Notify Employees of the Electronic Monitoring
In addition to notifying individual employees of the electronic monitoring upon hire, employers must post a notice about the electronic monitoring for all employees. That notice must be displayed in a “conspicuous place” that is readily accessible to any employee who may be subject to the monitoring. The new statute offers language that employers may use to comply with the law:
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, photoelectronic or photo-optical systems may be subject to monitoring at any and all times and by any lawful means.
What Happens If Employers Violate the Civil Rights Law
Individual employees cannot sue under the statute; only the state attorney general can enforce its terms. Employers that violate this law may face a penalty of up to $500 for the first offense. Second and third offenses may carry fines of up to $1,000 and $3,000, respectively.
To avoid these penalties, employers should immediately review their monitoring practices, update their handbooks and policies, and display an appropriate notice. Employers that have questions about what labor law posters are required in New York should consult the list available on the Poster Compliance website.