Kathy Hochul, the Governor of New York, signed a Bill requiring New York employers in the private sector to present written notice to their employees prior to electronic surveillance of their workplace activities. With the new law, electronic monitoring in the workplace includes employees’ telephone conversations /transmissions, electronic mail / transmissions, or internet usage by employees by any electronic device such as a telephone, wire, radio, computer, electromagnetic, photo-electronic or photo-optical systems.
Prior written notices of electronic monitoring systems being used, must be issued when hiring and acknowledged by employees in writing or electronically. The surveillance notice must be posted in places readily available for viewing by employees. Only the attorney general of New York is the authority exclusive enforcement in the matter. Failure to comply with legal requirements will be fined $2,500 for the offense the first time, up to $4000 for the second offense, and not more than $5000 for the third and all other subsequent offenses.
Electronic Monitoring Travails for Employers
Such employer monitoring requirements are in place in Connecticut and Delaware also, for both private and public sector employers. Excessive, clumsy, or improper employee monitoring could cause significant staff morale problems and may even create potential legal liability for privacy-related violations of statutory and common law protections. COVID-19 has significantly changed how organizations can operate, and surveillance is very important, for employers not sharing workspace with their employees. When employers implement new monitoring and surveillance tools, careful planning by the right team in place, should review policies, applicable federal and state laws, and address problems. Electronic monitoring by New York employers, irrespective of size must disclose the various electronic monitoring systems, to all employees.
Concerns of Employee Privacy
When organizations engage in surveillance or search employees, they must consider their employee expectations of privacy. Whether prior notice of employee monitoring is required or not, the best practice is to inform employees a well-drafted policy bout what to expect when using organizational systems, whether in the workplace or working remotely. This addresses employee expectations of privacy, as well as clarifying the information systems and activities subject to the policy.
From May 7, 2022, employers involved in electronic monitoring of employees, must provide detailed written notice to digitally monitor text messages, e-mails or intercept phone conversations, and internet usage of employees. The notice must be prominently placed, easily viewed by all employees to be monitored who are warned about being monitored at all times by lawful means.
New Hire Requirements
Employees hired after May 7, 2022, have to read and sign an acknowledgment that they have received this notice, in electronic or written form, before joining employment, and before monitoring can commence. This law requires no written or electronic acknowledgment from their current employees. Though lacking clarity about specific notices, notices must be clear and specific as regards the types of monitoring employers would engage.
Enforcement & Penalties
For violations, employers may be fined up to $500 for the first offense, $1,000 for the second offense, and additional $3,000 in fines for each consequent offense. Without any right of action, the Attorney General of New York can enforce violations. To ensure seamless compliance, employers may begin preparation for this new law immediately, regarding notices given to all employees as also consent forms for newly hired employees to sign. Employers should consider how to electronically monitor their employees and draft notices accordingly.