On November 8, 2021, New York amended its civil rights law to require employers to notify employees if their use of email, telephone systems, computer systems, and the like is subject to surveillance or interception by the ’employer. When the law takes effect on May 7, 2022, New York will join Connecticut, which has its own electronic watch notice requirements, in requiring employers to provide an electronic watch notice to their employees.
The laws of New York and Connecticut have two basic elements: written notice to surveillance employees and a prominent publication notifying surveillance employees.
Who is subject to the law?
Private employers with an establishment in New York State are covered by the law and must provide an electronic watch notice if they do so. The broad application of the law and its definitions (or lack thereof) will force employers to think twice about the impact this may have on employees living and working remotely outside of New York.
In today’s virtual world, many New York-based employers are likely to have people working remotely in other states. As a best practice, employers in this situation would be careful to assume that they are subject to the law. Compliance should have a relatively low cost for employers, in any case.
What is electronic monitoring?
According to the new law, electronic surveillance is the act of monitoring (or intercepting) telephone conversations or transmissions, e-mails or employees’ access to or use of the Internet, by means of a device or an electronic system, including but not limited to a computer, telephone, wired, radio or electromagnetic, photoelectronic or photo-optical system.
Electronic monitoring does not include processes designed to manage the type or volume of incoming or outgoing e-mail or voicemail or Internet usage, or processes that are not intended to monitor or intercept e-mail, voicemail, or Internet usage of a particular individual, and which is performed solely for the purpose of maintenance and/or protection of the computer system.
How should notice be given and when?
A covered employer must provide written or electronic notice to employees when they are hired. Employees must acknowledge receipt of the notice in writing or electronically. A covered employer must also post the notice of electronic monitoring in a conspicuous place that is easily accessible to employees who are subject to electronic monitoring.
What should the review say?
The written notice must essentially notify the employees:
“… that all telephone conversations or transmissions, electronic mail or transmissions, or any employee’s access to or use of the Internet by any electronic device or system, including, but not limited to, the use of computer, telephone, wire, radio or electromagnetic field, photoelectronic or photo-optical systems may be monitored at any time and by any lawful means.”
The New York State Attorney General’s office will enforce the electronic surveillance law and violators face civil penalties of $500 for the first offense, $1,000 for the second offense and $3,000 for each subsequent offence.
Reminder to Connecticut Employers
This new provision of New York law should remind Connecticut employers that Connecticut also requires that notice of electronic monitoring be given to employees, pursuant to General Statutes § 31-48d. Similar to New York law, Connecticut law broadly defines electronic surveillance as including “the collection of information from an employer’s premises regarding employee activities or communications by any means other than direct observation, including the use of a computer, telephone, wire, radio, camera, electromagnetic, photoelectronic or photo-optical systems”. Electronic monitoring in Connecticut does not include the collection of information for security purposes in common areas of employer premises that are for public use or that are prohibited by federal or state law. State. Connecticut also recognizes other exceptions that are not recognized by New York law, such as when an employer has reasonable grounds to believe that employees are engaging in illegal conduct.
Connecticut employers must give all affected employees written notice of the types of surveillance that may occur and must post, in a conspicuous place, a notice regarding the types of electronic surveillance in which the employer engages. In Connecticut (but not New York), such posting also constitutes the required written notice.
Employers with offices in New York and/or Connecticut must confirm that they are in compliance (or will be in compliance when New York law takes effect on May 7, 2022) with these electronic monitoring notification requirements. It is essential that written notices and postings comply with the requirements of each state.