Gov. Kathy Hochul signed four bills amending the New York Labor Law this month regarding (1) employers demanding social media account information from applicants and employees, (2) providing notice of eligibility of unemployment benefits to terminated employees, (3) prohibiting mandatory meetings at work about political and religious beliefs, and (4) invention assignment provisions contained in employment agreements. This alert summarizes those laws and what employers need to know about them.
Prohibiting Employers From Requesting That an Employee or Applicant Disclose Any Means for Accessing Electronic Personal Accounts (A836)
Gov. Hochul signed legislation prohibiting employers from requesting or requiring employees or applicants to disclose any username, password or other means to access their personal accounts (like social media accounts), thereby bringing New York in line with 26 other states with similar prohibitions. A “personal account” is any account or profile used by the employee or applicant exclusively for personal purposes.
The law makes it “unlawful for any employer to request, require or coerce any employee or applicant for employment to” do the following:
- Disclose any user name and password, password, or other authentication information for accessing a personal account through an electronic communications device.
- Access the employee’s or applicant’s personal account in the presence of the employer.
- Reproduce in any manner photographs, video or other information contained within a personal account obtained by prohibited means.
The law provides that employers cannot discharge, discipline or otherwise penalize, or threaten to discharge, discipline or otherwise penalize, employees who refuse to disclose access information to their personal accounts. Employers also cannot refuse to hire an applicant if the applicant refuses to disclose their personal account information. Employers, however, are permitted to require an employee to disclose any username, password or other means for accessing nonpersonal accounts that provide access to the employer’s internal computer or information systems.
In addition, nothing under the law prohibits employers from taking the following actions:
- Requesting or requiring an employee to disclose access information to an account provided by the employer that is used for business purposes when the employee had notice of the employer’s right to request or require such access information.
- Requesting or requiring an employee to disclose access information to an account known to the employer to be used for business purposes.
- Accessing electronic communications devices paid for in whole or in part by the employer where the provision of or payment for such device was conditioned on the employer’s right to access such device and the employee had notice of that right and explicitly agreed to such conditions. Employers are not, however, permitted to access personal accounts on such devices.
- Complying with a court order requiring the employer to obtain or provide information from or access to an employee’s account.
- Restricting or prohibiting an employee’s access to certain websites while using the employer’s network or using devices paid in whole or in part by the employer when provision of or payment for the device was conditioned on the employer’s right to restrict such access and the employee had notice and explicitly agreed to such conditions.
- Viewing, accessing or utilizing information about an employee or applicant that can be obtained without any required access information, that is publicly available, or for the purposes of obtaining reports of misconduct or investigating misconduct, photographs, videos, messages or other information that is voluntarily shared by the employee, client or other third party that the employee subject to such report or investigation has voluntarily given access to contained within such employee’s personal account.
In addition, if the employee or applicant voluntarily adds the employer, agent of the employer or employment agency to their list of contacts associated with their personal account, then it is not unlawful for an employer to access the personal account in that way. For example, if an employee sends a friend request on a social media account to their manager and the manager accepts the request, thereby gaining access to the employee’s account as a viewer, viewing the personal account in that way is lawful.
It is an affirmative defense under the law if the employer can show it acted to comply with the requirements of federal, state or local law.
The law takes effect on March 12, 2024.
Notice of Eligibility for Unemployment Benefits (S4878-A)
Gov. Hochul also signed legislation regarding notification of unemployment benefits.
Existing law requires employers to inform employees upon a permanent or indefinite separation of their right to file an application for unemployment. Under the new law, the same notice must be given not only for every permanent or indefinite separation but also for any reduction in hours, temporary separation, or any other interruption of continued employment that results in total or partial unemployment. The notice must be in writing on a form furnished or approved by the Department of Labor (DOL) and include the employer’s name and registration number and the address of the employer to which a request for remuneration and employment information must be directed. The DOL already has an approved form notice pursuant to existing regulations.
The law goes into effect on Nov. 13, 2023.
Prohibiting Mandatory Meetings and Communications Concerning an Employer’s Political or Religious Views (S4982)
Gov. Hochul also signed legislation regarding political and religious meetings at work. As discussed in our prior client alert on this topic, effective immediately employers are prohibited from discriminating against employees for their refusal to attend employer-sponsored meetings with their employer or its representatives, or listen to a speech or view communications, where the primary purpose is to communicate the employer’s opinion concerning political or religious matters. The law does not apply to an employer’s “managerial or supervisory employees” and also does not apply to nonmandatory “casual conversations” in the workplace.
Importantly, employers are immediately required to post a sign or notice in the workplace informing employees of their rights pursuant to the law. We expect that the DOL will publish a form of notice for employers to use.
Prohibitions Regarding Invention Assignment Provisions in Employment Agreements (A5295)
Finally, Gov. Hochul signed legislation on Sept. 15, effective immediately, regarding invention assignment provisions in employment agreements. The law provides that any provision in an employment agreement providing that an employee shall assign, or offer to assign, any of their rights in an invention to their employer shall not apply to inventions they developed “entirely” on their own time without using the employer’s equipment, supplies, facilities or trade secret information. The law does not apply to inventions that (1) “relate at the time of conception or reduction to practice” to the employer’s business or anticipated research or development or (2) result from any work performed by the employee for the employer. Any existing provisions that conflict with this new law are unenforceable.