What Should Employees Know about Electronic Monitoring Transparency?

It’s been approximately a month since New York State passed its law requiring employers to provide written notice of electronic employee monitoring. According to the new law, employers must notify employees if they will monitor email, telephone, or internet access and/or usage.

The law is set to take effect in early May 2022.

What should employees know about the new law and how will it affect the workplace?

Employers in New York State Must Notify Employees of Monitoring

Nearly every single employer in New York State is affected by the law. It applies regardless of the number of employees or industry. If the business is located in New York State and monitors employee communication, it must notify employees.

Employers must inform employees in writing or electronic record of the monitoring upon hiring. Employees must acknowledge the notification, too, so most employees will be asked to sign off on the notice.

Additionally, employers must post a notice of monitoring in a conspicuous place, similar to safety notices and other workplace rights information.

According to the law, employers must advise employees of the following:

“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.”

There are exceptions to the requirement to notify employees of monitoring.

The law does not apply in certain circumstances. For example, it doesn’t apply to processes that:

• Manage the type or volume of incoming or outgoing email, voicemail, or internet use
• Not targeted to monitor or intercept email or voicemail or internet use of just one employee
• Are for the sole purpose of system maintenance or protection

What Happens If an Employer Violates the Law?

Employers face the threat of a fine if they fail to fulfill their obligation of notification under the law.

Fines range from $500 for a first offense to $3000 for three or more offenses.

New York is one of the earliest adopters of laws related to transparency in electronic monitoring. The state joins Connecticut and Delaware as the only other states that require notification.

Many employers already provide notification of electronic monitoring, but the law makes it mandatory to do so and extends the requirements beyond what some employers already do.

The law goes into effect in the spring. Most employers plan to draft their notifications after the New Year. They should also review their current practices to determine what activities of their employees are within the scope of the notice requirements.

In addition to informing current employees of any monitoring, employers must also include notification in the new hire process.

To ensure compliance, employers must have easy access to employee acknowledgment should there be a need to share the information with authorities.

Do You Have Questions about Electronic Employee Monitoring?

If you have questions about New York’s new law regarding transparency in electronic monitoring or you need someone to help you with any legal issues in the workplace, we can help. For more information or to discuss issues with your pay, contact Borrelli & Associates, P.L.L.C. to schedule a free consultation.