New York’s new digital workplace monitoring law, Civil Rights (CVR) Chapter 6, Article 5, Section 52-C*2, will take effect on May 7th, 2022. The law requires employers to provide written notice to all employees upon hiring, detailing the types of electronic monitoring the employer may use. All employers, regardless of size, with a “place of business within New York State” are subject to the law.

The law covers monitoring of “any electronic device or system,” which includes but is not limited to a computer, telephone, internet, and email systems. It’s probable this includes video conferencing platforms like Zoom or Teams. The notice must be:

• Provided in writing in a “conspicuous place which is readily available for viewing by its employees who are subject to electronic monitoring.”

• In an electronic record, or another electronic form

• Acknowledged either in writing or electronically by each employee

Specifically, the notice posted in the workplace and provided to new employees should advise the employee 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 law provides an exception to its requirements when the activity is (a) designed to manage the type or volume of email, telephone, or internet use; (b) not targeted to monitor a particular employee; and (c) performed solely for purposes of systems administration or protection.

Violators may be subject to escalating civil penalties of $500 for the first offense, $1,000 for the second offense, and $3,000 for the third and each subsequent offense.

Here are some steps New York employers should consider taking ahead of the May 7th deadline:

• Draft the notice language, including the specific language outlined above, and include an acknowledgment section. Distribute to all new employees.

• Create a process for ensuring that all applicable new hires receive and acknowledge the notice of electronic monitoring. Integrating the acknowledgment into your onboarding procedure is a good way to ensure it doesn’t get missed.

• Add the relevant language to on-screen statements that employees must acknowledge in order to access company systems.

• Update your employee handbook and any other relevant policies.

• Develop a system to ensure every version of the notice provided to employees, along with acknowledgments, are stored in a safe and accessible place in case of the need to prove compliance.

• While system-based tasks such as spam filtering and data loss protection tools are not covered by the Act, businesses should inventory these systems to establish if they perform additional functions that may necessitate a notice requirement.

• Post the notice of electronic monitoring in a place (either physical or online, or both) that is conspicuous for employees who are subject to such monitoring.

When deciding to implement any level of employee monitoring or surveillance, employers should take into consideration their employees’ expectations regarding privacy. It is best practice to communicate to employees a thorough acceptable use and electronic communication policy, advising them of what to expect when using the company’s information systems, both in the workplace and when working remotely.