Starting May 7, 2022 New York State employers will be required to give notice to an employee when they are hired where the employer “monitors or otherwise intercepts” telephone calls, emails, or internet usage or access using “any electronic device or system.”
What does it mean?
What does it mean to “monitor” or “intercept” calls, emails, internet usage and “any electronic device or system”? Perhaps it’s best to exclude what it does not mean:
- It does not mean monitoring activities that manage the volume of incoming/outgoing email, voicemail or internet usage (e.g., firewalls, spam filters, antivirus programs).
- It does not mean activities that are not targeted at a particular person.
- It does not mean activities performed solely for computer maintenance or protection.
Next, by negative inference (because these were not addressed in the legislation), the following are also excluded:
- Video camera surveillance
- Location tracking (e.g., GPS monitoring, fleet monitoring)
Third, based on the statute, it is suggested that an employer’s review of stored email or voicemail in company accounts also fall outside of the notice requirements. This is because the status requires notice of “interception” or “monitoring” which courts have construed to be in real-time, rather than items already obtained.
Fourth, it is unclear if the statute applies to employees located in other states who are employed by New York employers. Best to treat all your employees as being covered at this time.
What if I don’t do anything?
The good news is there is no private right of action – meaning an employee cannot bring suit against you for this. But if the State audits your employment practices, and the required notices are not provided, employers are subject to escalating fines, beginning at $500 for the first offense, $1,000 for the second, and $3,000 for each subsequent.
So what should I do?
The law specifically addresses informing new employees of monitoring that may take place, but it is wise of employers to notify their existing employee base as well. Further, it does not seem to be limited to company-issued computers or electronic devices. Meaning, employers should provide notice if there is monitoring even on non-company owned devices.
Notice can consist of a statement such as: “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.” This notice may be in print or electronic, but the employee must acknowledge receipt. The notice can be integrated into access to email or internet, in an employee handbook, or stand-alone policy. It also is to be posted in a public area (if your workforce is not remote).
Francine E. Love is the Founder & Managing Attorney at LOVE LAW FIRM, PLLC which dedicates its practice to serving entrepreneurs, start-ups and small businesses. The opinions expressed are those of the author. This article is for general information purposes and is not intended to be and should not be taken as legal advice.