New York Imposes New Requirements for Employee Monitoring

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Sheppard Mullin Richter & Hampton LLP

New York recently enacted a law governing employee monitoring. The law applies to New York employers who monitor employees through electronic devices. This includes monitoring of telephone, emails, and internet access or usage. The law takes effect May 7, 2022.

Requirements

Under the law, employers must provide notice of monitoring to current employees and to new employees upon hire. The notice must be in writing or in an electronic form and conspicuously posted, and individually distributed. This means that the notice is readily available for viewing, on the company intranet, or at the worksite. Employees must acknowledge the notice in writing or electronically. The law appears to impose specific content requirements for the notice. Namely, that telephone conversations, email, or internet usage may be monitored at any and all times and by any lawful means.

Exceptions

Importantly, the law does not apply to processes that manage electronic communications and internet usage or systems maintenance. To qualify for the exception, the systems management processes must also not target the activities of a particular individual. Further, the processes must be performed solely for the purpose of computer system maintenance or protection.

Penalties

The NYAG has the authority to enforce these requirements. Civil penalties may range from $500 for a first offense, up to $3,000 for subsequent offenses. There is no private right of action for violations of the law.

Putting it Into Practice: New York joins other states, like Connecticut and Delaware, in requiring notice of employee monitoring. Companies should review their existing practices for providing notice of monitoring, such as employee handbooks, acceptable use policies, and login banners to confirm compliance with New York’s requirements. Companies should also develop a process for tracking and maintaining employee acknowledgements. While not expressly required by the statute, should the scope of the employer’s monitoring change, it is recommended that updated notice be provided to employees.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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