New legislation in the form of an amendment to the New York Civil Rights Law became effective on May 7, 2022, requiring private employers to inform current and newly hired employees that the employer electronically monitors their work telephone, email, and internet access and usage. With the increased reliance on technology in the workplace—and for that matter, the increased amount of remote work being done throughout New York State—many employees and employers are curious as to how this will impact their normal operating procedures, if at all. While the law does not radically modify the terms of an employee’s use of technology in the workplace (and remotely), there are several changes that both employees and employers should be aware of with regard to the consent/notice given of this surveillance, as well as how it will impact those currently employed versus those who will be newly hired.

What New York State Employees Need to Know

Now that the amendment is in effect, all New York State private employers of all sizes must disclose that they are electronically monitoring employee internet usage, emails, and/or telephone communication in the form of:

(1)       written and electronic notice to current employees;

(2)       upon hiring a new employee, employers must obtain written acknowledgment of the notice; and

(3)        posting a notice of their electronic monitoring in a conspicuous place which is readily available for viewing by subject employees.

While the statute does not define what is considered a “conspicuous area,” it is expected that many employers will choose to include this information in their employee handbooks or post stand-alone notices in break room areas so that employees can readily review these new policies at their convenience. It is also important to note that the law does not provide that those who were employed prior to the amendment be given the same written and electronic notice that those brought on after would have.

Notably, this new legislation does not apply to processes that:

• are designed to manage the type or volume of incoming or outgoing electronic mail or telephone voice mail or internet usage;
• are not targeted to monitor or intercept the electronic mail or telephone voice mail or internet usage of a particular individual; and
• are performed solely for the purpose of computer system maintenance and/or protection.

What New York State Employers Need to Know

Since the law is already in place, employers should have already made many of the necessary preparations to comply with this new legislation to avoid civil penalties. New York employers found in violation will be subject to a penalty of five hundred dollars for their first offense, increasing to one thousand for the second, and three thousand dollars for the third and any additional future offenses. These provisions are enforced by the New York State Attorney General as the amendment provides no private cause of action for these violations.

Although the electronic monitoring statute does not define what notification is required for out-of-state employees working remotely for a New York-based corporation, it is expected that the law would still apply. Considering that if the business is located in New York State and under the jurisdiction of the New York State Attorney General, the provisions would seemingly still apply even if the employee was working out of state.

Key Takeaways

While this law does not change much with regard to an employee’s use of technology in the workplace, it does help to clarify the relationship between employers and their employees and makes the monitoring of their communications a bit more transparent. While employers should have already taken the proper steps to comply with this new law, those who still have questions about the proper implementation of these notices should contact experienced legal counsel.

Sabastian S. Piedmont is the Managing Partner at Tully Rinckey PLLC’s Syracuse office, where he primarily practices in the firm’s New York State and federal labor and employment, and education practice groups. Sabastian has worked closely with many businesses, assisting both public and private clients with labor and employment considerations and advisory opinions on employment law guidance. He can be reached at info@tullylegal.com or at (888)-529-4543.