On November 8, 2021, New York amended its Civil Rights Law to require employers to notify employees if their use of e-mail, telephone systems, computer systems and the like are subject to monitoring or interception by the employer. When the law comes into effect on May 7, 2022, New York will join Connecticut, which has its own electronic monitoring notice requirements, in requiring that employers provide a notice of electronic monitoring to their employees.

Both the New York and Connecticut laws have two basic components: written notice to employees of monitoring, and a conspicuous posting to notify employees of monitoring.

Who is Subject to the Law?

Private employers with a place of business in the state of New York are covered by the law and must provide notice of electronic monitoring if they engage in it. The law’s broad application and definitions (or lack thereof) will require employers to think twice about how it may impact employees living and working remotely outside of New York.

In today’s virtual world, many New York-based employers are likely to have folks working remotely in other states. As a best practice, employers in this situation would be prudent to assume they are subject to the law. Compliance should come at a relatively low cost to employers, in any event.

What Constitutes Electronic Monitoring?

According to the new law, electronic monitoring is the act of monitoring (or intercepting) employees’ telephone conversations or transmissions, e-mail, or internet access or use, by means of an electronic device or system, including but not limited to a computer, telephone, wire, radio, or electromagnetic, photoelectronic or photo-optical system.

Electronic monitoring does not include processes designed to manage the type or volume of incoming or outgoing email or voicemail or internet usage, or processes that are not targeted to monitor or intercept email, voicemail or internet usage of a particular individual, and that are performed solely for the purpose of computer system maintenance and/or protection.

How Must Notice Be Given and When?

A covered employer must provide written or electronic notice to employees upon hire. Employees must acknowledge receipt of the notice either in writing or electronically. A covered employer must also post the notice of electronic monitoring in a conspicuous place which is readily available for viewing by employees who are subject to electronic monitoring.

What Must the Notice Say?

The written notice must essentially 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.”

Compliance

The Office of the New York State Attorney General will enforce the electronic monitoring law, and offenders are subject to civil penalties of $500 for the first offense, $1,000 for the second offense, and $3,000 for each subsequent offense.

Reminder to Connecticut Employers

This new provision of New York law should serve as a reminder to Connecticut employers that Connecticut also requires that prior notice of electronic monitoring be given to employees, per General Statutes § 31-48d. Similar to the New York law, Connecticut law broadly defines electronic monitoring to include “the collection of information on an employer’s premises concerning employees’ activities or communications by any means other than direct observation, including the use of a computer, telephone, wire, radio, camera, electromagnetic, photoelectronic or photo-optical systems.” Electronic monitoring in Connecticut does not include the collection of information for security purposes in common areas of the employer’s premises which are held out for use by the public, or which is prohibited under state or federal law. Connecticut also recognizes other exceptions which are not recognized by the New York law, such as when an employer has reasonable grounds to believe that employees are engaged in unlawful conduct.

Connecticut employers must give all affected employees prior written notice of the types of monitoring that may occur and must post, in a conspicuous place, a notice concerning the types of electronic monitoring the employer engages in. In Connecticut (but not in New York), this posting constitutes the required written notice as well.

Next Steps

Employers with locations in New York and/or Connecticut should confirm that they are in compliance (or will be in compliance when the New York law takes effect on May 7, 2022) with these electronic monitoring notice requirements. It is critical that written notices and postings comply with the requirements of each state.

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