New York State Requires Private Employers to Notify Employees of Electronic Monitoring

On November 8, 2021, New York Governor Kathy Hochul signed into law A.430/S.2628 (the “Act”), which requires private employers with a place of business in New York State to provide employees prior written notice, upon hiring, of any electronic monitoring by the employer to which employees will be subject. The Act applies to all private employers with a place of business in the State, regardless of size.

The Act regulates employers’ monitoring or interception of employee telephone conversations, emails and internet access or usage, through any electronic device or system, including computers, telephones, wires, radios, or electromagnetic, photoelectronic, or photo-optical systems. The Act exempts from scope monitoring processes that are designed to manage the type or volume of telephone voice mails, emails, or internet usage, where such monitoring (i) is not targeted at particular individuals’ telephone conversations, emails, or internet usage and (ii) is solely for the purpose of computer system maintenance or protection.

The required notice must inform employees that their telephone conversations, emails or internet access or usage may be subject to monitoring by the employer at any and all times, and by any lawful means. The notice must be (i) in writing, (ii) in an electronic record or other electronic form, and (iii) acknowledged by the employee in writing or electronically. Employers also must post the notice in a readily available, conspicuous location where it can be viewed by employees subject to such electronic monitoring.

The New York Attorney General is authorized to enforce the Act, with maximum civil penalties for violations ranging from $500 for a first offense, $1,000 for a second offense, and $3,000 for a third and each subsequent offense.

The Act will become effective 180 days after becoming law, on May 7, 2022.