An Employee’s Right to Notice of Electronic Monitoring Under New York’s New Privacy Law

As telecommuting grows in popularity, more workers may question if their employers are keeping tabs on what they’re up to online (whether they’re using company equipment or their own) and if this is legal. Businesses in New York must notify workers in writing if they intend to conduct electronic surveillance, but the law does not specify what types of monitoring are permitted.

Talk to lawyers at Sattiraju & Tharney, LLP in New Jersey, which specializes in your type of case, if you have particular questions regarding your rights and possible courses of action.

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Mandates of the New Regulations

Under New York, Civil Rights Law 52-c, employers with a place of business in the state who will be (lawfully) monitoring employee electronic communications must follow certain requirements

(a) provide a prior written notice upon hiring to the affected employees;

(b) obtain the employees’ written or electronic acknowledgment of the notice, and

(c) display the electronic monitoring notice prominently.

The warning should specify that:

In accordance with applicable law, an employer has the right to monitor an employee’s use of any electronic device or system, including but not limited to a computer, telephone, wire, radio, electromagnetic, photoelectronic, or photo-optical systems, for the purpose of eavesdropping or otherwise obtaining information.

New York Civil Rights Law section 52(c). Covered employers are not required to provide notice if the activity focuses on managing the volume, type, or use of electronic mail, voicemail, or internet traffic. The activity is not designed to monitor or intercept an individual’s electronic mail, voicemail, or internet usage but only to maintain and protect the computer system.

Just how Will Workers Be Affected by the New Legislation?

When it comes down to it, how will workers be affected by the new law? It will be crucial to how people respond to the news that their company is monitoring their digital communications. Those who raise concerns about their employers’ surveillance tactics based on a reasonable suspicion that the conduct is improper may be protected from retaliation under New York’s whistleblower statute. Section 740 of the New York Labor Law.

What are the consequences for the company if they don’t give the proper notice? The new legislation authorizes the New York Attorney General to enforce its provisions and levy civil penalties of up to $3,000 for each failure to furnish the notice, but it does not give employees a private right of action against their employers in the event of a violation under Civil Rights Law 52(c).

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