New York State recently enacted an amendment to its civil rights law requiring all employers with a place of business in New York who conduct electronic monitoring of employee telephone, e-mail or Internet usage to provide prior written notice upon hiring to all employees who are subject to such monitoring.

The written notice must advise 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 may be subject to monitoring at any and all times by any lawful means. The notice must be in writing (either hard copy or electronic) and acknowledged by the employee in writing or electronically, and also posted in a conspicuous place which is readily available for viewing.

The purpose of this new notification requirement is to protect employee privacy by ensuring that employees understand the consequences of inappropriate Internet activity and to “permit employees to make informed decisions about their Internet use with full knowledge of the ramifications of their actions, while supporting companies' ability to monitor Internet activity within their organization.”

Employers should also be aware that other states, such as Connecticut and Delaware, have enacted similar laws requiring employers who engage in electronic monitoring to provide written notice to employees who may be affected by such monitoring.

The amendment becomes effective 7 May 2022. Employers who are found to violate the New York law are subject to civil penalties of USD 500 for a first offense, USD 1,000 for a second offense, and USD 3,000 for the third and each subsequent offense.

The law does not apply to processes that (a) are designed to manage the type or volume of incoming or outgoing electronic mail or telephone voice mail or Internet usage; (b) are not targeted to monitor or intercept the e-mail or telephone voice mail or Internet usage of a particular individual; and (c) are performed solely for the purpose of computer system maintenance and/or protection.