Starting in May, a new law in New York will require employers to provide written notice before monitoring their employees’ electronic communication. The legislation, known as A.430/S.2628, mandates initial notification at hiring and annual reminders to inform employees about the types of electronic monitoring that may occur.
This new legislation aligns with similar laws in Connecticut and Delaware, which require employers to notify employees before electronic monitoring. In these states, both private and public sector employers must provide prior written notice, and failure to comply results in penalties.
Prior to this law, New York employers adhered to New York’s wiretapping law and federal laws like the Electronic Communications Privacy Act of 1986. The new law seeks to balance employee privacy with employers’ rights to monitor workplace communications and activities.
The law defines an employer broadly and applies to all employers in New York State, excluding state and political subdivisions. However, it does not specify who qualifies as an employee, creating some ambiguity around independent contractors or volunteers. The New York Attorney General will enforce the law, potentially using the state’s Labour Law definition of an employee.
The law covers monitoring of telephone conversations, text messages, emails, and internet usage, including through various electronic devices and systems. With proper notice, employers can monitor for compliance with workplace policies and illegal activities like data leaks, and use security cameras for workplace surveillance.
The law emphasizes the importance of proper notice, requiring both written and posted notifications. Employers must inform employees that all communications may be monitored and obtain acknowledgment of receipt. Notices must be posted in a conspicuous place accessible to employees, such as an intranet page or online portal.
The New York State Attorney General will impose fines on employers who fail to comply with the law. Fines start at $500 for the first offense, increasing to $1,000 and $3,000 for subsequent offenses. Employers are encouraged to review their systems to ensure compliance with the notice requirements.
With the law taking effect on May 7, 2022, New York employers should review and update their electronic monitoring policies. They need to establish processes for providing the required notices and maintaining records of employee acknowledgments to ensure compliance and avoid penalties.
