United States: NY Employers Who Conduct Electronic Monitoring Of Employees Must Provide Written Notice To New Hires Starting May 7

Effective May 7, 2022, all private-sector employers "with a place of business in New York State" (for-profits and nonprofits, alike) that conduct electronic monitoring of employees must provide prior written notice of monitoring, containing specified language, to new hires. This requirement is part of a new state law enacted toward the end of 2021, amending New York's Civil Rights Law.

The written notice of electronic monitoring by the employer must inform an employee 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."

Although the law does not require that current employees receive the written notice, it does require employers to post a notice of electronic monitoring in a conspicuous area available for viewing by employees subject to such monitoring.

One open question is whether a "place of business in New York" means a physical location or includes employees working remotely from New York, but presumably, the organization must have a physical location in order for the Attorney General to enforce the law against it.

The New York State Attorney General has the authority to enforce the law, but there is no private right of action for employees to sue their employer. An employer who violates the law could face a civil penalty up to $500 for the first offense, $1,000 for the second offense, and $3,000 for a third and each subsequent offense. Presumably, an employee who reports an employer's violation to the Attorney General or Department of Labor might have a cause of action under New York State's new whistleblower law, if they are retaliated against for making such a report.

The required electronic monitoring notice is just the latest development in a growing trend toward greater workplace transparency in New York. Other new requirements include New York City's salary transparency law¹ and New York's decision to expand whistleblower protections (effective January 26, 2022 and set forth in the Notice of Employee Rights, Protections and Obligations Under Labor Law Section 740², which also must be posted in the workplace).

What Should Employers Do Now?

Covered employers should obtain a signed acknowledgement of receipt of the written notice from new hires and also consider including the required notice in employee policies and handbooks. Additionally, New York employers should ensure they have posted their electronic monitoring notice where they maintain other labor postings.

Footnotes

1. See http://www.schnader.com/wp-content/uploads/2022/03/May-Day-Salaries-for-All-To-See-in-NYC-Starting-in-May-AS-PUBLISHED-3-8-22.pdf

New York City's salary transparency law was scheduled to take effect on May 15, 2022. However, on April 28, the New York City Council voted to amend the law to change the effective date to November 1, 2022, to clarify that the law applies to employees paid hourly or receiving an annual salary, and to clarify that it does not apply to positions that cannot or will not be performed in New York City. It further provides that there is no private right of action against an employer under the law unless the individual is a current employee bringing the claim against their employer for advertising a job, promotion or transfer without posting a minimum and maximum hourly wage or annual salary. It also clarifies that there is no monetary penalty for the first violation of this law and that employers would have 30 days to correct the violation. But note that, an employer's submission of proof of having cured a violation, if accepted by the New York City Commission on Human Rights as proof that the violation has been cured, is deemed an admission of liability by the employer. If Mayor Adams does not sign or veto the bill within 30 days (i.e., by May 28), then the bill becomes law.

2. https://dol.ny.gov/system/files/documents/2022/02/ls740_1.pdf.

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