Employee monitoring: New York sets new requirements for employers | Jackson Lewis PC

Earlier this month, New York Governor Kathy Hochul passed a bill that will require New York City private sector employers to provide written notice to employees before engaging in electronic monitoring of their jobs. workplace activities. Civil Rights (CVR) Chapter 6, Article 5, Section 52-C * 2 will take effect six months after promulgation, i.e. May 7e, 2022.

Under new New York law, electronic workplace monitoring includes monitoring employee telephone conversations or transmissions, electronic mail or transmissions, or Internet access or use by or 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-optics. Written notice of electronic monitoring must be issued at the time of hiring and must be acknowledged by the employee in writing or electronically. In addition, the notice must be posted in a conspicuous place and easily accessible to employees.

It is important to note that under the new law, a private right of action for employees who are affected by the law is not available. The New York Attorney General has exclusive enforcement power. Failure to comply with the notice requirements of the law may subject the employer to a civil fine of $ 500 for the first offense, $ 1,000 for the second offense and $ 3,000 for the third and each subsequent offense.

The monitoring requirements of such employers are not exclusive to New York. In Connecticut, for example, private and public sector employers are required to notify employees prior to electronic monitoring, with similar penalties for non-compliance. Likewise, in Delaware, an employer is not permitted to monitor or intercept an employee’s telephone conversations, e-mails, or internet use without written notice or, alternatively, notification, on the day of, whenever the employee accesses e-mail or Internet access services provided by the employer.

Excessive, awkward, or inappropriate monitoring of employees can cause significant morale problems and, worse yet, create potential legal liability for privacy-related violations of statutory and common law protections, as evidenced by New York’s law. York and the like. Advances in technology have made it easier to monitor employees remotely and, by extension, break the law for employers who are not careful.

When organizations decide to engage in some level of employee monitoring or research, they should consider their employees’ expectations for privacy. Whether in a jurisdiction that requires advance notice of employee monitoring or not, in general, it is recommended that employees be provided with a well-written acceptable use and electronic communications policy that informs them of what to expect when checking in. use of organizational systems, whether in the workplace or when working remotely. This includes meeting employee privacy expectations, as well as specifying the information systems and activities that are subject to the policy.

COVID-19 has changed the way many organizations operate, and tracking and surveillance has become increasingly important, especially for employers who do not share the same physical workspace with their employees. When employers implement new monitoring and control tools, they need to plan carefully, have the right team in place, review applicable state and federal policies and laws, and be prepared to resolve issues when they arise. .

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