On November 8, 2021, New York Governor Kathy Hochul signed into law Senate Bill 2628 / Assembly Bill 430, making New York the third state, following Connecticut and Delaware, to require employers to provide notice of electronic monitoring to employees.
Who is covered?
The new law defines employers as "any individual, corporation, partnership, firm, or association with a place of business in the state." The definition does not "include the state or any political subdivision of the state."
What is required?
"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."
Such notice must be: (1) in writing, in an electronic record, or in some other electronic form; (2) acknowledged by the employee either in writing or electronically; and (3) conspicuously placed and readily available for employees.
Please note that the requirements of this new law do not apply to electronic mail, telephone, and internet usage processes that are "performed solely for the purpose of computer system maintenance and/or protection."
The new law allows for enforcement by the attorney general. The maximum civil penalty for the first offense is $500. The maximum civil penalties for the second and third offenses are $1000 and $3000, respectively.
New York's new law takes effect on May 7, 2022
Considering the evolving legal landscape and impending laws such as the recent employee electronic monitoring law enacted in New York, the Octillo Compliance Advisory attorney team recommends that companies review existing policies and procedures. Employee notices, Acceptable Use policies, and Employee handbook provisions are among the items that should be reviewed annually to be sure the representations align with any new legal obligations. Companies should also review employee login banners as well as evaluate and audit the process for tracking and documenting employee acknowledgment.
*Attorney advertising: prior results do not guarantee similar outcomes.