New Electronic Monitoring Requirements for New York Employers Starting May 7 | Gibney Anthony & Flaherty, LLP | #itsecurity | #infosec

Effective May 7, 2022, employers in New York State will need to provide written notice to new hires where the employer “monitors or otherwise intercepts [employee] telephone conversations or transmissions, electronic mail or transmissions, or internet” using “any electronic device or system.” The new state law applies to any private individual or entity with a place of business in the State of New York.

Any employer that electronically monitors telephones, emails, and/or internet usage must give prior written notice of that monitoring to all new employees and obtain a written acknowledgment in writing (which may be in electronic form). The notice must advise the employees that all telephone calls, emails, or internet access or usage may be subject to monitoring at any and all times and by any lawful means. With respect to existing employees, employers do not have to provide individual written notices or obtain written acknowledgments of the notices. However, New York employers must post such a notice in a “conspicuous place” readily available for viewing by employees subject to electronic monitoring.

The new law does not apply to processes designated to manage the volume or type of transmissions or performed solely for purposes of system maintenance or cybersecurity protection.

The New York State Office of the Attorney General has the authority to enforce the law. The law provides for the imposition of civil penalties, for violations of its requirements. Employers found to be in violation of the law are subject to civil penalties ranging from up to $500 for a first offense, $1,000 for a second offense, $3,000 for a third offense and for each subsequent offense. Significantly, there is no private right of action for affected individuals.

How Employers Can Prepare

To avoid civil penalties, New York employers should prepare for the law by taking the following steps:

  1. Review their electronic monitoring practices and update their employee handbooks and employee-facing website portals to ensure that they are providing adequate notice of such monitoring under the new law.
  2. Prepare an employee acknowledgment of electronic monitoring form to be included in onboarding documents for new employees.
  3. Prepare a notice and post it in a conspicuous place readily available for viewing by employees. Employers may elect to post the notice on their intranet site, employee handbook, and/or physically post it in the workplace. Employers also may wish to place the notice on the login page of the employer’s computer network.

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