November 19, 2021

By: Avi R. Jerushalmy, Esq.

New York’s New Electronic Monitoring Law Mandates New Disclosure Requirements for Employers

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It’s a new dawn of electronic monitoring in New York, as employers will soon be required to disclose the extent of their electronic monitoring of employees in the workplace. On November 8, 2021, New York Governor Kathy Hochul signed a new law amending New York State’s Civil Rights Law requiring all private employers that conduct business in the State of New York, regardless of size, to provide notice to employees of electronic monitoring of telephone, email, and internet access and usage.

General Requirements

Effective May 7, 2022, employers engaging in electronic monitoring must provide detailed notice to their employees. Notice will be required if the employer wishes to digitally monitor or otherwise intercept phone conversations, text messages, e-mails and internet usage of employees.

In order to satisfy the notification requirements, employers must post a written notice of the monitoring, in a conspicuous place, readily available for viewing by all employees who will be subject to the monitoring. The employees must be warned that they are subject to monitoring at all times and by any lawful means of doing so.

New Hire Requirements

In addition to the above requirements, an employee hired after May 7, 2022, must sign an acknowledgment of receipt of this notice, either in electronic or written form, at the outset of their employment, and before monitoring can commence. This law does not require written or electronic acknowledgment from current employees.

It is not clear how specific the notices must be, it is recommended that the notices be as clear and specific as possible regarding the types of monitoring which the employer will engage in.

Enforcement & Penalties

Employers may be subject to fines for violations of this law of up to $500 for the first offense, $1,000 for the second offense, and an additional $3,000 in fines for each offense thereafter. While there is no private right of action, the law authorizes the New York Attorney General to enforce violations.

It is advised that employers begin preparation for this new law immediately to ensure seamless compliance, both with respect to notices to be posted for all employees and acknowledgement forms for new hires to sign. Employers should begin to consider the scope of which they would like to electronically monitor employees and draft the language of the above items accordingly.

For more information regarding this new law and for assistance in preparing for compliance, please contact Partner Dina M. Mastellone, Esq. via email here, or Counsel Brigette N. Eagan, Esq. via email here in Genova Burns’ Human Resources Counseling & Compliance Practice Group or call 973.533.0777.

Tags: Genova Burns LLCAvi R. JerushalmyEmployment Law & LitigationBrigette N. EaganHuman Resources Counseling & ComplianceNew YorkDina M. Mastellone

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