Newly enacted legislation, to be codified at § 52-c of the New York Civil Rights Law, requires all private employers to give written notice to their employees, at the time of hire, if the employer monitors or intercepts its employees' telephone, email, or internet access or usage. Employers must also post a notice in a conspicuous place in the workplace.

The law, which will go into effect on May 7, 2022, specifically states that employers "will retain the right to monitor computer usage," but requires that notice be provided to employees to "increase transparency within the organization" to "help to avoid lawsuits and litigation regarding invasion of privacy." Employers may provide the notice in writing or electronically and employees must acknowledge receipt of the notice, which may also be done in writing or electronically.

Many employers already include a policy in their employee handbooks stating that the employer retains the right to access an employee's electronic communications, such as email, that are sent using systems or equipment provided by the employer, and that such communications should not be considered private, even if password protected.

These handbook policies, by themselves, will not satisfy the requirements of the new law if the policies do not also provide a method by which employees can provide a written or electronic acknowledgement that they have received the policy. We therefore recommend that employers provide a stand-alone policy and acknowledgment form, as well as including the policy in the employee handbook.

The law does not contain a model notice, nor does it specify particular verbiage that must be included in the notice. However, employers should incorporate the following language set forth in the statute when drafting the required notice:

[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 law does not apply to systems that are designed solely to track the volume of communications or for computer system maintenance or protection, as long as those systems are not capable of monitoring or intercepting the communications of a particular individual.

The statute does not provide any exception for, or even address, an employer's ability to review telephone, email, or internet usage as part of an investigation. We therefore recommend that employers provide the required notice to all current employees and all new hires, even if the employer does not plan to regularly monitor such usage. That will enable employers to review telephone, email, or internet usage should an investigation be necessary in the future.

The law will be enforced by the attorney general of New York and provides for 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. Employers monitoring or planning to monitor employee email or telephone transmissions, or internet access, or usage need to update their onboarding materials and revise their employee policies or handbooks for 2022.