Effective May 7, 2022, the New York State Civil Rights Law (the "CRL") will require any employer with a place of business in New York State that monitors its employees' telephone, email or internet usage by electronic means to provide written notice, and to obtain an acknowledgement, of such monitoring upon hiring.
Under this CRL amendment, the notice and acknowledgment requirements apply to employers that monitor or otherwise intercept telephone conversations or transmissions, email or internet access or usage by an employee by any electronic device or system, including by the use of a computer, telephone, electromagnetic, photoelectronic or photo-optical systems. This CRL requirement is not limited to employer-provided computers and devices, but also covers employees who use their personal devices to transmit and receive emails and access the internet through their employer's systems.
Employers must obtain acknowledgment of receipt of the written notice from new hires either in writing or electronically. In addition, the notice must be posted in a conspicuous place which is readily available. Employers can post the notice where they post other required notices, such as in the Human Resources Department, and on their intranet.
Specifically, the CRL provides that if an employer engages in electronic monitoring of its employees, they must be advised that:
[A]ny 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.
This CRL provision does not apply to all monitoring. Excluded are processes that are designed to manage the type or volume of incoming or outgoing email or telephone voicemail or internet usage, that are not targeted to monitor or intercept the email or telephone voicemail or internet usage of a particular individual, and that are performed solely for the purpose of computer system maintenance and/or protection.
The New York State Attorney General will enforce this new provision of the CRL. Employers found to be in violation shall 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.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
