New York recently joined Connecticut and Delaware as one of a small number of states with statutes that require employers that engage in electronic monitoring of employees to provide prior written notice of the monitoring.
On November 8, 2021, the State of New York enacted an amendment to the Civil Rights Law creating new section 52-c, which takes effect after 180 days. The new law applies to any private sector employer that monitors or otherwise intercepts an employee’s telephone conversations or transmissions, electronic mail or transmissions, or internet access or usage. The law provides an exception to its requirements when the activity is (a) designed to manage the type or volume of email, telephone, or internet use; (b) not targeted to monitor a particular employee; and (c) performed solely for purposes of systems administration or protection.
The prior written notice required by the New York law must be provided upon hire to all employees who will be subject to monitoring. It may be provided in writing (i.e., hard copy) or electronically, and the employee must acknowledge the notice in writing or electronically. The employer must also post the notice “in a conspicuous place which is readily available for viewing” by the employees who are subject to monitoring. The law does not state whether the posting is to be physical or electronic.
The law specifies that the contents of the notice should inform 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.”
If an employer is found to have violated the law, the Attorney General may impose a maximum civil penalty of $500 for the first offense, $1,000 for the second offense, and $3,000 for the third and each subsequent offense.
New York’s new law has some similarities to the existing laws in Delaware and Connecticut. Delaware Code Title 19, § 705 applies to similar types of electronic monitoring activities as the New York law, and it provides a similar exception for processing for systems administration and protection purposes that is not targeted to monitoring a particular employee. The employer must provide any employee who is subject to monitoring with either an electronic notice regarding its monitoring policies or activities at least once each day the employee accesses the employer’s systems; or a one-time prior notice of its monitoring activity or policies. The notice may be in writing or in electronic form and must be acknowledged by the employee in writing or electronically. Violations are subject to a civil penalty of $100 per violation, which does not “limit or bar any person from pursuing any other remedies available under any other law, state or federal statute, or the common law.”
Connecticut’s law applies to a broader scope of electronic monitoring activity, including “the collection of information on an employer’s premises concerning employees’ activities or communications by any means other than direct observation.” Conn. Gen. Stat. § 31-48d. The law provides an exception for security monitoring of publicly accessible common areas. Exceptions are also available when an employer reasonably believes that an employee is violating the law, violating the legal rights of the employer or the other employees, or creating a hostile workplace environment, and electronic monitoring may produce evidence of this misconduct. Otherwise, the employer must provide employees with prior written notice of the types of monitoring the employer may engage in and must post a notice regarding electronic monitoring in a conspicuous place that is readily available for viewing by employees. An employer found to be in violation of the law may be subject to a maximum civil penalty of $500 for the first offense, $1,000 for the second offense and $3,000 for the third and each subsequent offense.
A company that wishes to take a uniform approach across its U.S. locations after considering these state laws should plan to provide prior written notice to, and obtain an acknowledgment from, all relevant employees, including new hires. The notice should address all of the types of electronic monitoring that the employer engages in, not just monitoring related to telephone, email and internet use, and irrespective of whether the activity is an incident of systems management and security processes. Finally, the notice content should incorporate the language indicated in the New York law, and the company should post the notice in a conspicuous place that is readily available to the relevant employees.
Looking beyond these electronic monitoring statutes, additional obligations to notify employees about workplace monitoring may arise under other sources such as federal or state wiretap laws, National Labor Relations Board rulings, and common law, depending on the particular facts of the monitoring involved. A company that is planning to implement a new employee monitoring tool or process can help manage its risks by anticipating that notice may be necessary.