On May 7, 2022, New York Governor Kathy Hochul signed an amendment to the New York State Civil Rights Law requiring every private sector employer that engages in internet, telephonic, or email monitoring of its employees to notify them about such surveillance practices.
The law, Senate Bill 2628, applies to employers who intercept or monitor employee telephone conversations, text messages, emails, or internet access and usage. Under the law, upon hiring, employers must provide written notice to employees who are subject to electronic monitoring. The notice must be provided in writing or in electronic form. The employer must obtain a written or electronic acknowledgement from the employee that the notice of surveillance has been provided. After the initial notice upon hiring, employers must provide annual notices to employees. Employers must also post the notice of electronic monitoring “in a conspicuous place which is readily available for viewing by employees.” The notice must advise employees that all phone calls, emails, and internet access or usage may be subject to monitoring “at any and all times and by any lawful means.”
Notably, the law only applies to employer surveillance practices designed to intercept and monitor individual employee calls, texts, emails, and internet access or usage. Employers are not required to provide notice to employees about monitoring systems that manage the type or volume of email, telephone usage, voicemails, or internet access and usage. Employers are not required to provide notice of surveillance programs that are used solely for system maintenance or security. These exclusions give rise to grey areas, and possibly exemptions from providing notice, as employers can use surveillance tools for multiple purposes.
Only New York’s Attorney General can enforce this law. There is no private right of action for individuals. The maximum civil penalty is $500 for the first offense, $1,000 for the second offense, and $3,000 for the third offense. While the bill aims to increase transparency within the workplace and help avoid lawsuits and litigation regarding invasion of privacy, it does not ultimately discourage employers from engaging in employee surveillance.