New York State Enacts Law to Require Employers to Notify Employees of Electronic Monitoring

November 19, 2021

On November 8, 2021, Governor Kathy Hochul signed New York Senate Bill S2628 (the “Act”) into law which amends the state civil rights law to require employers who monitor their employees’ phone, e-mail, or internet access or usage to give employees prior written notice of such activity. Below are the major points of the Act:

  • The Act goes into effect on May 7, 2022.
  • The Act applies to all private employers with a place of business in New York State, regardless of size, who “monitor or otherwise intercept” employees’ telephone conversations, e-mails, or internet access or usage.
  • The notice must be provided to employees upon hiring in writing or electronically and must be acknowledged by the employee either in writing or electronically.
  • The notice must also be posted in a conspicuous place which is readily viewable by employees who are subject to electronic monitoring.
  • The notice must inform employees that: “[A]ny and all telephone conversations or transmissions, electronic mail or transmissions, or internet access or usage 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 may be subject to monitoring at any and all times and by any lawful means.”
  • The provisions of the Act will not apply to processes that: (i) are designed to manage the type or volume of incoming or outgoing electronic mail or telephone voice mail or internet usage; (ii) are not targeted to monitor or intercept the electronic mail or telephone voice mail or internet usage of a particular individual; and (iii) are performed solely for the purpose of computer system maintenance and/or protection.
  • Employers who violate the Act are subject to fines up to a maximum of $500 for the first offense, $1,000 for the second offense, and $3,000 for the third and each subsequent offense.

New York employers who monitor employees’ telephone, e-mail, and internet access and usage should update their employee handbooks and policies, conspicuously post the notice, and prepare to provide the proper notice to any new hires.

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If you have any questions regarding this Act, or any other employment issues, please contact Anne C. Patin at (212) 574-1516, Julia C. Spivack at (212) 574-1373 or your relationship partner at the Firm.


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