Written By: Francine Alfandary and Austin Ochoa
Employers have many compelling reasons to monitor usage of company devices and networks. Employers are required by law to provide a safe workplace for their employees, including a workplace which is free from any harassing communications. In addition, employers have a business need to protect their competitively valuable information and trade secrets. Employers must ensure that confidential information is protected, such as personnel files. Many employee handbooks include disclosure about a company’s electronic monitoring.
New York has enacted a law which requires employers to notify their employees of any electronic monitoring. Employers must post a notice in the workplace beginning on May 7, 2022.
The law requires all employers who monitor or intercept employee telephone conversations, email transmissions, or internet usage by any electronic device or system to:
- Notify and secure an acknowledgement from newly hired employees who are subject to electronic monitoring. The notice must be in writing or in an electronic form and be acknowledged by the employee either in writing or electronically.
- Post a notice of electronic monitoring in a conspicuous place which is readily available for viewing by employees who are subject to electronic monitoring. Employers are not required to obtain acknowledgement from existing employees.
The law applies to every New York employer with a place of business in New York.
Under the law, employers must notify employees 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” may be subject to monitoring “at any and all times by any lawful means.”
The notice must disclose that the electronic devices or systems that may be subject to monitoring include, but are not limited to, “computer, telephone, wire, radio or electromagnetic, photoelectronic or photo-optical systems.”
The law does not cover processes “designed to manage the type or volume of incoming or outgoing electronic mail or telephone voice mail or internet usage.” The law also does not cover processes “that are not targeted to monitor or intercept the electronic mail, telephone voice mail, or internet usage of a particular individual,” as well as those processes that are “performed solely for the purpose of computer system maintenance and/or protection.”
The Office of the New York State Attorney General will enforce the law and may impose civil penalties, against any employer, for violations of the law up to $500 for the first offense, $1,000 for the second offense, and $3,000 for the third offense.
Pearl Cohen would be happy to help you prepare a notice and acknowledgement form. Please contact Francine Alfandary at: FAlfandary@PearlCohen.com
