By Rachel H. Khedouri, Esq.
Effective May 7, 2022, all private employers with a place of business in New York State that electronically monitor or intercept employee telephone conversations, electronic mail, and/or internet access or usage will be required to provide advance notice to employees. The notice requirement is not triggered by the use of processes such as spam filters and firewalls that are designed to monitor the type or volume of incoming or outgoing electronic mail or telephone voice mail or internet usage, are not targeted to a particular individual, and are performed solely for purposes of system maintenance and protection. The full text of the new legislation is available HERE.
Although the legislation is not enforceable until May, we encourage employers to begin planning now by taking the following steps:
STEP 1: Analyze how best to provide notice to and receive an acknowledgment from new hires.
Starting May 7, employers must provide “prior written notice upon hiring” to all employees subject to electronic monitoring and receive an acknowledgment from those employees that they received the notice. This notice and acknowledgment – which can be provided either in writing or electronically – must inform new hires that any and all telephone conversations, emails, or internet use by any electronic device (including, for example, computers and telephones) may be subject to monitoring by the company “at any and all times and by any lawful means”. This written notice and acknowledgment requirement does not apply to existing employees.
As the law is silent on the exact process employers must follow, unless it is otherwise clarified, companies should consider reasonable methods for providing notice and receiving acknowledgment from new employees. Some options include:
- Add notice language in offer letters to be countersigned by the new hire and/or attach to the offer letter a separate written notice (with acknowledgment);
- Provide written notice and obtain acknowledgment at another point during the onboarding process, such as the first day of work;
- Modify employee handbooks to include notification of monitoring and expressly include reference to the policy in the employee acknowledgment of receipt of the handbook. Employers choosing this option should ensure that employees are given the handbook to review and sign on their first day in order to ensure that the notice was provided “upon hiring.”
STEP 2: Prepare to post the notice of electronic monitoring to be seen by all employees.
Employers must post the notice of electronic monitoring in a “conspicuous place which is readily available for viewing” by all employees who are subject to electronic monitoring. Although the legislation is unclear, it appears that this requirement can be satisfied by posting the notice electronically, such as on the company’s intranet.
Employers should not take these obligations lightly: The Office of the New York State Attorney General has the authority to issue civil penalties from $500 for a first offense, $1,000 for a second offense, and $3,000 per offense for a third and each subsequent offense, which can certainly add up to a significant expense. One positive note for employers is that the law does not provide a private cause of action for violations, so they will not be facing individual or class actions by employees for alleged notice violations.
If you have any questions relating to this new law or would like assistance in drafting the required notices under this new law or reviewing your employee monitoring or other employment policies, please reach out to the NFC Attorney with whom you typically work or call us at 973.665.9100