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New York’s Electronic Monitoring Notification Regulation: What Employers Need to Know Employers need to let employees know about lawful workplace monitoring

On May 7, 2022, a New York regulation will take effect that requires all private employers in the state to notify employees about electronic monitoring that they may be subject to by the employer. Electronic monitoring includes any monitoring of the company's electronic methods of communication, including but not limited to employee's phone, email, internet use, GPS tracking systems, and key fob/key access.

Many employers may monitor this activity for various reasons, from quality assurance, measuring productivity, or preventing employees from accessing social media apps or inappropriate web content during working hours. The law does not prohibit this continued monitoring, and there are legitimate business reasons an employer may choose to monitor employee activity on the phone or internet.

The requirements

The law requires New York employers to provide written notice to employees upon hire that “any and all telephone conversations or transmissions, electronic mail or transmissions, or internet access or usage by an employee may be subject to monitoring at any and all times and by any lawful means.” Further, employers must obtain written or electronic acknowledgment of the notification from employees. Employers must also post the notice in a conspicuous location in the workplace that allows employees the opportunity to readily review the notice. 

The written acknowledgment provision only applies to employees hired after the law goes into effect, so while current employees must be notified, there is no requirement to collect acknowledgments from them at this time.

What employers should be doing now

To assist our clients with the notification requirements, HR One has created a poster which can be downloaded, completed, and posted. You can download it as a fillable PDF here: /media/115241/Electronic-Monitoring-Notice-HR-One.pdf

The notice may be included in an employee handbook, and collecting the handbook acknowledgment as part of any new hire onboarding/orientation would satisfy the law’s requirements.

Employers found to be in violation of the law may be subject to a maximum civil penalty of $500 for the first offense, $1,000 for the second offense and $3,000 for the third and each subsequent offense.