Is Big Brother Watching? No, It’s Just Your Employer, But Now With Increased Notice

By: Brandon Barbaruolo

Currently, employers are allowed to monitor employee electronic communications based on the federal Electronic Communications Privacy Act of 1986 (hereinafter “ECPA”).[1]  The ECPA allows employers to monitor electronic communications of employees on two grounds.[2] One is employee consent; many employers follow this by providing some sort of acknowledgement before electronically monitoring.[3]  The other ground is a business exception, which allows employers to monitor employee’s business related communications without employee consent.[4]  New York is ready to make a change. Starting on May 7th, 2022, New York will require employers to provide written notice of electronic monitoring to employees.[5]  New York is not the first state to implement a law of this kind, joining Connecticut and Delaware as states that require employers to provide notice to new hires of the electronic monitoring they will be subject to.[6]  

The law, which was signed into law on November 8, 2021 by Governor Kathy Hochul,[7] sets out requirements for the employer, including providing notice of the monitoring to all new hires, obtaining employee acknowledgement of the written notice, and posting of the notice in a conspicuous location.[8]  The law applies to all private employers, regardless of size, with places of business in New York, but not including the state or any political subdivision.[9]  There is no requirement to obtain acknowledgement from preexisting employees, only new hires.[10]  Under this new law, existing employees are not required to acknowledge that their communications could be subject to monitoring.[11]  Although it is not required, employers might want to provide written notice of the electronic monitoring before the May 7th implementation, to ensure compliance.[12]

The new law is applicable to employers who monitor or intercept: telephone conversations, electronic mail (hereinafter “e-mail”), and internet access or usage “of or 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.”[13]  There is no specific definition of “intercept” in the law, but employers could look to the definition in the Federal Wiretap Act for assistance.[14]  The Federal Wiretap Act defines “intercept” as the aural or other acquisition of the contents of any wire, electronic, or oral communication through the use of any electronic or other device.[15]  The law requiring notice comes at a time when internet usage and digital communication is ever-present.[16]  The law is not meant to cover processes that attempt to manage the volume of both incoming and outgoing e-mail, telephone voicemails, or internet usage.[17]  Processes that are not directed towards monitoring the e-mail or telephone usage of a specific person are also not covered by the law.[18]

The law is subject to enforcement by the New York State Office of the Attorney General.[19]  The initial violation of the law will result in being subject to civil penalties up $500 for the first offense, $1,000 for a second offense and up to $3,000 for a third offense and for each offense thereafter.[20]  New York private employers are recommended to begin following the guidelines for current employees before the May 7th start date to create a more cohesive workplace.[21]Employers are also recommended to update their policies and procedures to be certain that all new hires receive the required notice and give the proper acknowledgement in correspondence.[22]   


[1] See New York Employers Required to Provide Notice of Electronic Monitoring, Duane Morris (Jan. 4, 2022), https://www.duanemorris.com/alerts/new_york_employers_required_provide_notice_electronic_monitoring_0122.html.

[2] Id.

[3] Id

[4] Id.

[5] See Simone R.D. Francis, Electronic Monitoring of Employees in New York: New Restrictions and Requirements Will Take Effect in 2022, Ogletree Deakins (Dec. 29, 2021), https://ogletree.com/insights/electronic-monitoring-of-employees-in-new-york-new-restrictions-and-requirements-will-take-effect-in-2022/.

[6] See Caroline B. Burnett, Kimberly Franco, Autumn Sharp & Kaitlin Thompson, New York’s New Electronic Monitoring Disclosure Law Requires Action Before May, The Employer Report (Feb. 2, 2022) https://www.theemployerreport.com/2022/02/new-yorks-new-electronic-monitoring-disclosure-law-requires-action-before-may/.

[7] See Francis, supra note 5. 

[8] See New York Employers Required to Provide Notice of Electronic Monitoringsupra note 1. 

[9] See Laurie Belony & Hope Sarah Goldstein, New York Enacts Employee Privacy Protections with Electronic Monitoring Law, jdsupra (Feb. 8, 2022), https://www.jdsupra.com/legalnews/new-york-enacts-employee-privacy-3727502/.  

[10] See Jyotin Hamid, Johanna N. Skrzypczyk & Tricia Bozyk Sherno, Notice of Electronic Monitoring to Employees — New Requirements for Employers in NY State, Debevoise & Plimpton (Feb. 24, 2022) https://www.debevoise.com/insights/publications/2022/02/new-york-state-employers-to-be-required#:~:text=On%20November%208%2C%202021%2C%20Governor,an%20Acknowledgment%20from%20New%20Hires.

[11] Id

[12] Francis, supra note 5. 

[13] Id

[14] See Caroline B. Burnett, Kimberly Franco, Autumn Sharp & Kaitlin Thompson, supra note 6. 

[15] See 18 U.S.C.A § 2510(4) (defining “intercept”). 

[16] See Joseph Johnson, Global Digital Population as of January 2021, Statista (Sept. 10, 2021) https://www.statista.com/statistics/617136/digital-population-worldwide/.

[17] See New York Employers Required to Provide Notice of Electronic Monitoringsupra note 1. 

[18] Id

[19] See David B. Ritter, Douglas M. Oldham & Kenneth J. Yerkes, New York Law Requires Employee Notice Of Electronic Monitoring, The Nat’l L. Rev. (Feb. 7, 2022) https://www.natlawreview.com/article/new-york-law-requires-employee-notice-electronic-monitoring.  

[20] Id

[21] See Caroline B. Burnett, Kimberly Franco, Autumn Sharp & Kaitlin Thompson, supra note 6. 

[22] Id

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