Faegre Drinker Biddle & Reath LLP

On November 8, 2021, New York Governor Kathy Hochul signed new workplace privacy legislation (A.430/S.2628) into law. Beginning in May 2022, private employers with a “place of business” in the state of New York will have to inform their employees if the employer “monitors or otherwise intercepts” telephone conversations, e-mail, or internet access or usage “of or by an employee by any electronic device or system.” This legislation does not apply to state or local government employers.

Specifically, employers will have to provide notice of such monitoring “in writing, in an electronic record, or in another electronic form,” and will have to obtain written or electronic employee acknowledgment denoting that the employee knows he or she is being monitored. Employers will also be required to post notice of electronic monitoring “in a conspicuous place,” such that it is “readily available” to employees subject to electronic monitoring.

The statute does not apply to processes that “manage the type or volume” of e-mail, voicemail, and internet usage, that do not target the e-mail, voicemail, and internet usage of a particular individual, and that are performed “solely for the purpose of computer system maintenance and/or protection.”

The statute gives the New York attorney general authority to enforce its provisions. It also sets maximum penalties of $500 for a first offense, $1000 for a second offense, and $3000 for a third and for all subsequent offenses.