Hey employers! It’s time to update those handbooks (again). Updated New York Employment Privacy Laws went into effect this spring. Have you updated your employment handbook or other onboarding documents yet? Employers may have several legitimate reasons why they wish to monitor or surveil employees’ electronic communications. Employers looking to monitor employees should be mindful of the various federal and state laws that govern their conduct and tailor their methods and policies to comply. Federal law for the most part gives employers room to implement employee monitoring or surveillance policies. In the case of New York and a few other states like Delaware and Connecticut, notice of monitoring is now required. New York employers should update written employment policies and contracts to reflect this new development in the law.
What Does Federal Law Allow?
When contemplating employee monitoring, Employers must comply with the Electronic Communications Privacy Act (ECPA), which restricts interception of electronic communications. It does create exceptions, allowing employers to monitor employees as long as they have either consent or find it necessary to protect their rights or property. (18 U.S.C. § 2511(2)(a)(i) and (c)). The Stored Communications Act prevents employers from accessing employee’s private stored communications. The Act does not apply to communications stored on services owned by the employer. (18 U.S.C. § 2701 (c)(i)).
New York’s Employee Privacy Law and What it Means for Employers
On May 7th Senate Bill 2628 took effect in New York. The Bill amends New York Civil Rights Law adding § 52-c. The law which was passed by the New York Senate in June of 2021, goes beyond the existing federal laws to protect employees’ privacy rights. It requires all private employers to provide written notice of electronic monitoring to all new employees, subject to such policies, during the onboarding process. Employers must receive acknowledgment of the written notice from new employees. They must also post the notice “in a conspicuous place which is readily available for viewing by its employees.” New York based employers may also wish to circulate amended employment handbooks or notices to all current employees beyond new hires, especially if they had not done so previously.
The law specifies the contents of the required notice. In the written notice, New York employers must advise employees that any and all electronic communications may be “subject to monitoring at any and all times and by any lawful means.” The notice should include what electronic communications and surveillance practices are included — “monitor[ing] or otherwise intercept[ing] telephone conversations or transmissions, electronic mail or transmissions, or internet access or usage of 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-optical systems.” While The language is broad, it may be a good time to evaluate electronic communications monitoring practices. Employers may wish to further specify what, why, and how communications are monitored. For example, including how monitoring policies relate to employees who use their personal devices for work purposes may serve to eliminate any confusion among employees. With an increase in remote from work and bring your own device policies, these questions may be especially relevant for your workplace and are likely a source of ambiguity.
The law excludes management tools that are not meant to intercept the communications of targeted employees. The law does not apply to “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.”
The penalty for violating the requirement to provide notice to new hires and to post is “five hundred dollars for the first offense, one thousand dollars for the second offense and three thousand dollars for the third and each subsequent offense.”
Many employers already provide notice of monitoring in employment handbooks or other materials. Obtaining consent from an employee is good practice. If that is the case, employers may wish review their policies and confirm they comply with the updated law. Maybe you already have! Updating written employment policies to comply with the law, if you haven’t already, is simple to do and circulate amongst existing and new hires. It can save employers from the headache and fines.
Providing Notice of Electronic Monitoring is Mutually Beneficial
Employers should always evaluate other risks and weigh the pros and cons of implementing surveillance policies. Employers may wish to monitor electronic communications and internet usage for a myriad of reasons. Protecting intellectual property and trade secrets, deterring illegal activity, increasing productivity etc. are all legitimate reasons employees may wish to monitor electronic communications. Failing to obtain consent of employees can make employers more vulnerable. Beyond the risk of legal action, certain types of legal monitoring can increase distrust, stress, and other negative feelings amongst employees. Transparency and advanced notice may help to curb these issues and protect the employer from litigation. With a clear and thorough policy, employees are left with fewer questions. As mentioned above many employers already provide such notice. As with most employment issues clear communication around workplace policies is the most effective way to avoid running afoul of the law and to build workplace morale.