New York Employers Now Required to Notify Employees Before Monitoring Electronic Communications

May 9, 2022

It might seem common sense that an employer has the right to monitor/review communications sent and received by its employees on work-owned electronic devices, but as the saying goes, ‘common sense isn’t so common.’

With that in mind, New York State implemented a new law that took effect May 7, 2022 related to employees’ right of privacy. Under the new rules, private employers in New York State are now required to notify all new hires that they have the right to monitor and/or review certain electronic devices and the communications held within.

Specifically, the law states:

Any employer who monitors or otherwise intercepts telephone conversations or transmissions, electronic mail or transmissions, or internet access or usage of or by an employee by any electronic device or system, including but not limited to the use of a computer, telephone, wire, radio, or electromagnetic, photo electronic or photo-optical systems, shall give prior written notice upon hiring to all employees who are subject to electronic monitoring.

The written notification given to new employees must include language specifically telling all new hires 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 is subject to monitoring at any and all times by any lawful means.
• The devices or systems subject to monitoring include, but are not limited to, computer, wire, telephone, radio or electromagnetic, photo-electronic, or photo-optical systems.

In addition, every private employer is required to post the rules in the workplace.

The law does not apply to systems designed to manage the type or volume of communications, as long as the systems are not capable of monitoring or intercepting the communications of an individual, and are designed solely for the purpose of computer system maintenance and/or protection.

Employers found to be in violation of the law face civil penalties in the amount of $500 for the first violation, $1,000 for a second violation and $3,000 for each additional violation.

Employers should update their hiring materials and revise employee policies and handbooks to comply with the new law.

We work with our private employer clients in New York to ensure they are in full compliance with this, and other workplace laws. That includes advising them on the preparation of the written form notifying new employees of the monitoring, the posting of a written notice, as well as reviewing employee handbooks to make any necessary updates (even though you will have a signed form, we advise clients it is a good idea to add/update the employee handbook as well for complete protection.

If you have questions about this, or any other labor and employment law topic, myself or any member of our labor and employment group is available.

Click here to read the full language in the new law.

Scott Philbin is a Buffalo-based litigation attorney handling a broad array of business and commercial matters at the trial and appellate levels in both state and federal court. He can be reached at 716-854-4300 ext. 305, or [email protected]