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.

Federal Law Background on Workplace Monitoring

While New York’s law is among the most comprehensive, federal law has long permitted employer monitoring with important limitations. The Electronic Communications Privacy Act of 1986 (“ECPA”), 18 U.S.C. § 2511, prohibits the intentional interception of wire, oral, or electronic communications but carves out an exception for business extension telephones and employer monitoring of communications on employer-provided systems where there is prior consent or a legitimate business purpose. Courts have interpreted this consent exception broadly when employees are given advance notice of monitoring policies — precisely the type of notice that New York now requires by statute.

The Stored Communications Act (“SCA”), 18 U.S.C. § 2701, separately governs access to stored electronic communications. Employers generally have broader latitude to access stored emails and files on employer-owned systems than they do to intercept communications in real time. But accessing stored communications on an employee’s personal device or personal email account without consent may cross into SCA territory, creating legal liability.

State-Level Monitoring Laws Beyond New York

New York is not alone in regulating workplace monitoring. Connecticut has had a workplace electronic monitoring notice statute since 1998. Delaware enacted a similar law in 2001. Several other states impose notice or consent requirements for monitoring telephone conversations. The landscape is fragmented, which creates significant compliance complexity for employers with workers in multiple states.

California deserves particular attention. While California does not have a standalone workplace monitoring statute, its constitutional right to privacy — which applies to private sector employees, not just government employees — combined with the California Consumer Privacy Act (“CCPA”) creates robust protections. Employers with California employees must disclose data collection practices, including monitoring, in a compliant privacy notice provided at or before the point of collection. The California Privacy Rights Act (“CPRA”), which amended the CCPA effective January 2023, expanded these obligations significantly.

What Employers Must Do to Comply

An employer that monitors employee communications or devices must take the following affirmative steps to minimize legal exposure:

• Adopt a written acceptable use and monitoring policy — The policy should describe in plain language all methods of monitoring the employer uses or may use, including email monitoring, internet usage tracking, keystroke logging, screen capture, GPS tracking of company vehicles, and video surveillance. The policy should state clearly that employees have no reasonable expectation of privacy when using employer-owned systems or devices.
• Obtain written acknowledgment — Under New York law, acknowledgment is mandatory. More broadly, a signed acknowledgment demonstrates that the employee received and reviewed the policy, which can be critical evidence if a monitoring dispute ends up in litigation or before a regulatory agency.
• Post conspicuous workplace notice — New York requires a general workplace notice. Employers should post this notice in break rooms, common areas, and any location where employment policies are customarily posted.
• Limit monitoring to legitimate business purposes — Courts scrutinize monitoring practices that appear pretextual or disproportionate to the stated business need. Document the business justification for monitoring programs and apply them consistently across similarly-situated employees.
• Be especially cautious with personal devices — Bring-your-own-device (BYOD) policies that involve monitoring personal devices require careful legal review. Even where notice is given, monitoring personal devices may implicate employee privacy rights beyond the scope of notice statutes.

The Union and Collective Bargaining Dimension

For employers with unionized workforces, electronic monitoring raises additional obligations under the National Labor Relations Act (“NLRA”). The National Labor Relations Board (“NLRB”) has taken the position that employers must bargain with the union before implementing new monitoring programs that constitute a material change in working conditions. Failure to bargain may constitute an unfair labor practice. The NLRB’s August 2022 memorandum on electronic surveillance flagged particular concerns about monitoring that chills protected concerted activity under Section 7 of the NLRA — such as discussing wages, working conditions, or union organizing.

Navigating the intersection of employer monitoring rights, state privacy statutes, and federal labor law requires legal guidance tailored to your specific workforce and business operations. Businesses should conduct an annual review of their monitoring policies to ensure they remain compliant as state laws evolve and remote work arrangements continue to expand. Contact the business lawyers at Revision Legal at 231-714-0100 to review your monitoring policies and ensure compliance.