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Business Law Developments: Can Employers Monitor Calls, Emails and Internet Usage Without Notice?

By John DiGiacomo

New York has recently passed a law that says “no,” employers cannot engage in electronic monitoring of employee phone calls, emails, and online usage without notice. Further, employers are required to obtain an acknowledgement from workers that they received the notice. The new law was signed by New York Governor Kathy Hochul on November 8, 2021 and goes into effect in May 2022. See media report here. The required notice must be given to existing employees and, in the future, must be provided to newly hired employees. The law applies to any employer with a workplace in New York State and applies to any employer “… who monitors or otherwise intercepts telephone conversations or transmissions, electronic mail or transmissions or internet access or usage of or by an employee.” The new law is an amendment to New York’s Civil Rights laws. See text of the new law here. The law also requires that a general public notice be conspicuously posted in the workplace.

The definition of “electronic monitoring” is very broad and includes any type of monitoring or interception through any electronic device or system such as computers, wires, radios, electromagnetic, photoelectric, or photo-optical systems. Violation of the new law will be enforced by the New York Attorney General. Civil penalties can be imposed of $500 for the first violation, $1,000 for the second offense and $3,000 for each violation thereafter.

Note that the new law does not limit its application to the monitoring of employer-owned telephones, computers and devices. That is, employers must provide notice of monitoring when they intercept devices that are owned by employees. The new law may have been prompted by the enormous jump in remote working and increasing efforts by employers to monitor remote workers and remote workplaces. See media report here. There are now a number of software monitoring programs on the market like Time Doctor and StaffCop which can monitor keystrokes, capture screenshots, watch the employee and the remote workspace from the computer’s camera, take over a computer remotely, track employee locations, record audio and more. As also reported in this article, some employers are mandating unannounced employer visits to the workspaces used by remote workers (often the employee’s home).

There are, of course, legitimate legal reasons for such monitoring and for surveying remote workspaces. These include issues related to workplace safety and workers compensation issues. In a famous case from Washington State, a worker was awarded workers compensation benefits when she tripped on her dog while working from home. Further, state and federal labor laws entitle remote workers to all the protections provided to more traditional workers on the job site. Thus, it is reasonable to ensure that the workers are actually engaged in work. But, at the same time, there is a balance that must be maintained with respect to a remote worker’s privacy. New York has determined that notice and acknowledgement is one method of helping to maintain that balance.

For more information, contact the employment and business lawyers at Revision Legal at 231-714-0100.

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