NYS Electronic Monitoring Notice Requirements – Are You Prepared?
On November 8, 2021, New York Governor Kathy Hochul signed an amendment to the New York Civil Rights Law which requires employers to provide an electronic monitoring notice to employees. This law is scheduled to go into effect on May 7, 2022. To date, NYS has not provided further guidance or a sample posting to comply with this law.
The law requires all New York employers to provide written notice to new employees upon hire if the employer monitors or plans to monitor or intercept employee telephone or email communications or internet usage. The written notice may be provided by hard copy or electronic format and new hires must acknowledge receipt. Employers must also post a notice in a “conspicuous place which is readily available for viewing” by employees subject to electronic monitoring.
As stated in the text of the law regarding the notice, "an employee shall be advised that any and all telephone conversations or transmissions, electronic mail or transmissions, or internet access or usage by an employee by any electronic device or system, including but not limited to the use of a computer, telephone, wire, radio or electromagnetic, photoelectronic or photo-optical systems may be subject to monitoring at any and all times and by any lawful means.”
No definition is provided for “conspicuous place”. However, given that employer guidance for several other labor law posters indicates that they must be posted conspicuously, employers may wish to post a copy of their electronic monitoring policy with other state and federal labor law posters.
The New York State Attorney General will be enforcing the law. Employers found to have violated the law will be subject to fines of up to $500 for the first offense, $1,000 for the second offense, and $3,000 for the third and each subsequent offense.
New York employers who currently conduct or plan to conduct electronic monitoring of employees should be sure to provide: (1) the policy and an acknowledgement form to new employees upon hire; as well as (2) post a notice of the electronic monitoring policy in a conspicuous place for existing employees.
Employers are encouraged to have their employment law attorney review their policy and acknowledgement form prior to use.
Greater Rochester Chamber members with questions on this or other HR-related topics are welcome to contact the HR Helpline staff: Kathy Richmond at (585) 256-4618, Jennifer Suppé at (585) 256-4608, or Fernán Cepero at (585) 256-4606.