As we previously reported, employers with workers in New York need to be aware of the fast-approaching deadline to notify and collect employees’ signed acknowledgments relating to employers’ employee electronic monitoring activities.

Deadline and Enforcement

The New York Attorney General’s Office will begin enforcing the new law on May 7, 2022. Potential penalties for violations carry a “maximum civil penalty of five hundred dollars for the first violation, one thousand dollars for the second violation and three thousand dollars for the third and each subsequent” violation. Fines are per violation, i.e. per employee, so penalties for non-compliance in even medium-sized companies can quickly become significant.

Notice Requirements

New York employers must provide notice to covered employees that discloses any and all activities monitoring employees’ email, phone, or internet usage.

Specifically, employers must notify employees 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.”

Policies and notices should include the statute’s exact language, as written above, and any separate acknowledgment should expressly include the same. Employers should distribute notices among employees and receive their acknowledgment as soon as possible to ensure compliance by the May 7 deadline. This also applies to any new hires.

Finally, employers should post the same notice in a conspicuous location in the workplace and/or company intranet that is accessible to employees. A poster has not been provided for this, but you can download the one we’ve created here.

Other Housekeeping

Employers should keep accurate records of each employee’s notice and acknowledgment. If employees are not subject to the monitoring activities described in the statute, employers should keep a separate paper record of this, in the event of any future audit or investigation.

The new law does not apply to “processes that are designed to manage the type or volume of incoming or outgoing electronic mail or telephone voice mail or internet usage, that are not targeted to monitor or intercept the electronic mail or telephone voice mail or internet usage of a particular individual, and that are performed solely for the purpose of computer system maintenance and/or protection.”

Employers are advised to work with their IT, HR, and information security departments to understand where or how the law may apply. Likewise, seek legal advice to ensure compliance with the new law.

Do you need help figuring out the HR regulations that impact your team? We can help you get compliance under control. Contact us today to get started.