A new law, which amends the New York Civil Rights Law, will require New York employers to provide notice before monitoring employee electronic communications. The amendment takes effect on May 7, 2022.New Requirements for New York Employers Engaged in Electronic Monitoring to Come Into Effect May 7, 2022

What does the new law require for employers?

The new law requires that New York employers fulfill three requirements before electronically monitoring their employees. The first requirement is that employers provide employees with written or electronic notice of electronic monitoring upon hire. The second requirement is that employers obtain written or electronic acknowledgement of electronic monitoring from their employees. The third requirement is that employers post a notice of electronic monitoring in a conspicuous and easily accessible place for all employees that are subject to the monitoring.

The notice must advise 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, 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.”

What counts as electronic monitoring?

Electronic monitoring includes monitoring:

  • Telephone conversations;
  • Electronic mail;
  • Internet access or usage by an employee.

Who is covered under the law?

The law covers all employers with a place of business in New York State. This includes individuals, corporations, partnerships, firms and associations.

What is the penalty for violating the law?

An employer found in violation of this law are subject to civil penalties of $500 for the first offense, $1000 for the second offense and $3000 for the third offense, as well as $3000 for any subsequent offense.

Are there any exemptions?

Employers are exempt from these new requirements if their monitoring activities:

  • are designed to manage the type or volume of incoming or outgoing electronic mail or telephone voice mail or internet usage;
  • are not targeted to monitor or intercept the electronic mail or telephone voice mail or internet usage of a particular individual; or
  • are performed solely for the purpose of computer system maintenance and/or protection.

In summary, this new law requires employers to make their employees aware of their electronic monitoring practices, subject to the stipulated exemptions, and to ensure that employees understand and acknowledge that they are being electronically monitored. To view the full text of the new law, click here.

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