As the landscape of the workplace continues to evolve and change in our post-Covid world, the federal and state legislation being passed continues to evolve, as well.
With a remote workforce increasing in numbers, and our world continuing to utilize various technologies to operate with employees in all different locations, employers are looking at their policies to determine whether they need to be revised, updated or changed, and how the different laws being passed might affect them. One such law that was recently passed in New York relates to electronic surveillance of communications in the workplace and the disclosure that must be made to employees.
New York has added a new section to its civil rights law (section 52-c) which will require employers who electronically monitor or otherwise intercept telephone conversations, electronic mail, or internet access or usage of or by an employee on any electronic device or system, including, but not limited to, the use of a computer, phone, radio, etc., to disclose such monitoring to employees. See New York AB 430 (SB 2628).
Employers must provide written notice to employees upon hiring 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, 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.” The notice must be provided either by hard copy or electronic form and it must also be posted in a conspicuous place which is readily available for viewing by the employees who are subject to electronic monitoring. The employee must also acknowledge receipt of the notice in writing or electronically.
If an employer is found to be in violation of this section, the following civil penalties could be imposed: (i) maximum of $500 for the first offense; (ii) maximum of $1,000 for the second offense; and (iii) maximum of $3,000 for the third and each subsequent offense.
If you do monitor electronic communications of your employees, make sure you provide the appropriate written notice. The law will become effective on May 7, 2022 so if you need to update your Employee Handbook to include the notice within the handbook and have the employee acknowledge receipt, now is a good time to do it.
