United States: Workplace Monitoring: New Duties In New York

[Gunnar Larson]

United States: Workplace Monitoring: New Duties In New York:
https://www.mondaq.com/unitedstates/employee-rights-labour-relations/1191278/workplace-monitoring-new-duties-in-new-york?email_access=on

United States: Workplace Monitoring: New Duties In New York
10 May 2022
by Andrew Williamson (FordHarrison LLP)
lus Laboris

Beginning 7 May 2022, employers in the US state of New York will be
required to notify and get written acknowledgment from employees if their
electronic activity in the workplace is monitored.

Employers often monitor employees for a number of reasons, including to
ensure workplace policies and procedures are followed, to detect illegal
behaviour such as trade secret theft, or to comply with regulatory
obligations. As a result, many employers provide notice of electronic
monitoring as a matter of practice, via their employee handbooks.

However, due to amendments to the New York Civil Rights Law, New York
employers are now required to explicitly notify employees if their
electronic activity will be monitored and to obtain written acknowledgment
from employees. The new law will see New York join Connecticut Delaware
among the states requiring disclosure of workplace electronic monitoring.

Which businesses and individuals are covered?
The law applies to all private employers as it broadly defines 'employer'
as any individual or entity, regardless of size, with a place of business
in New York State. The law specifically excludes 'the state or any
political subdivision of the state.'

Notably, the law does not define 'employee,' making it unclear whether
employers must provide notice and obtain written acknowledgment from
individuals not considered employees (i.e. independent contractors or
interns) but who nonetheless use the employer's monitored electronic
systems. Also unaddressed is whether individuals hired by New York
employers to work remotely out-of-state are entitled to the requisite
notice. In the absence of guidance, it may be prudent for employers to
extend notice to and obtain written acknowledgment from remote employees as
well as other individuals who use the employer's monitored electronic
systems.

Which electronic monitoring activities are covered?
The new law will apply to all private employers who monitor or intercept
their employees' telephone conversations or transmissions, electronic mail
or transmissions, or internet access or usage.

Importantly, notice is not required for processes that are:

designed to manage the type or volume of electronic mail, voicemail, or
internet;
targeted to monitor or intercept activities other than email, phone and
internet activities; or
performed solely for the purpose of computer system maintenance and/or
protection.
Accordingly, certain tasks such as spam filtering, proxy servers, or
firewall protections in place merely to scan or block certain electronic
transmissions are not covered. Similarly, because the law limits the notice
requirement to email, telephone, and internet monitoring, surveillance by
video cameras and location tracking should not be covered.

What does the law require?
In practice, the law imposes three requirements.

First, it requires covered employers to provide employees with a notice of
electronic monitoring upon hiring to all new hires. The law provides
language akin to a model employee notice that employers may use, which
states:

'[A]n 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.'

Second, employers must also secure written acknowledgment from new
employees that confirms their receipt of the notice. The notice can be
provided, and the acknowledgment obtained, electronically. Note that the
law does not require employers to provide notice to or obtain an
acknowledgment from existing employees, though employers may choose to do
so.

Third, employers must also post a notice of monitoring in a 'conspicuous
place which is readily available for viewing by [their] employees who are
subject to electronic monitoring.' Employers should post this notice where
they post all other legally required, employment-related notices. Although
the law does not define a 'conspicuous space,' employers with a remote
workforce would likely satisfy this obligation by posting the notice on
their intranet page or other company portal commonly accessed by employees,
or as part of the log-in process to access the company's computer system.

How will the law be enforced?
The law is enforced by New York's attorney general. Violations of the law
may subject employers to civil penalties of up to USD 500 for the first
offence, USD 1,000 for the second offense, and USD 3,000 for the third and
each subsequent offence. There is no private right of action. The law does
not specify whether the failure to notify an employee and the failure to
obtain the employee's acknowledgment are separate violations.

Next steps for covered employers
Businesses with employees in New York should take steps now to comply with
the law's requirements.

Specifically, organisations should update their onboarding policies and
procedures to ensure all new hires receive the required notice and execute
the necessary acknowledgment. This includes identifying how new hires will
be given notice and the collection and storage of acknowledgment forms.
Further, employers should determine where the notice will be posted in the
workplace, which may include their intranet sites or log-in portals.
Employers should also review and, if necessary, update their employee
handbooks to ensure existing monitoring policies reflect the law's notice
requirements. Finally, although the law specifically applies to new hires,
employers would be prudent to follow the same steps for existing employees
subject to electronic monitoring before the effective date.

The content of this article is intended to provide a general guide to the
subject matter. Specialist advice should be sought about your specific
circumstances.

AUTHOR(S)

Andrew Williamson (FordHarrison LLP)
lus Laboris

ARTICLE TAGS
United States
Employment and HR
Contract of Employment
Employee Rights/ Labour Relations
Media, Telecoms, IT, Entertainment
IT and Internet
Telecoms, Mobile & Cable Communications
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