Employer Advisory: Electronic Surveillance Of New York Employees Require Advance Written Notice

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By Steven C. DePalma

Effective May 7, 2022, every private-sector employer located in the State of New York must provide written notice of its electronic monitoring practices to all employees: 1) upon hiring with written or electronic employee acknowledgment, and 2) in a “conspicuous place” viewable by all employees. The law applies broadly to any employer that is an individual, corporation, partnership, firm, or association with a place of business in the State of New York, regardless of size.

Specifically, the law requires that any employer who monitors or otherwise intercepts telephone conversations or transmissions, electronic mail or transmissions, or internet access or usage of or 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, shall give prior written notice upon hiring to all employees who are subject to electronic monitoring.

However, the law 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, that are not targeted to monitor or intercept the electronic mail or telephone voicemail, or internet usage of a particular individual, and that are performed solely for the purpose of computer system maintenance and/or protection.

The required notice must be in writing, in an electronic record, or in another electronic form and acknowledged by the employee either in writing or electronically. Notably, the law does not require employers to obtain an acknowledgment from existing employees.

Employers who are found to violate the law will receive a civil penalty of $500 for a first-time violation, $1,000 for a second violation, and $3,000 for a third and any subsequent violation(s). As of the publication of this article, the New York State Attorney General has not issued a model notice or poster.

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