New York recently amended its civil rights laws to require notice be given to employees if the employer monitors or otherwise intercepts employees’ phones, text messages, email, instant messages, or internet use. The notice must be provided upon hiring and receipt must be acknowledged in writing or electronically by the employee. The notice is informative only and does not require the employee to consent to the monitoring.
In addition, employers are required to post the notice in a conspicuous place. The notice must state that “any 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.”
Employers don’t have to provide this notice if the monitoring:
- Is designed to manage the type or volume of email, voicemail, or internet use
- Is limited to aggregate data (doesn’t connect individual employees with their use data)
- Is performed solely for computer system maintenance or protection
- For use of spam filters.
- If you electronically monitor employees’ phone, email, or internet:
- Provide an electronic monitoring notice at hire
- Require an acknowledgment and keep it on file
- Post notification of monitoring
While the law is silent on the need for an acknowledgement from existing employees, C2 recommends that if you are a New York employer and do conduct monitoring, you would be prudent to obtain the acknowledgement from everyone.