New York Governor Kathy Hochul recently signed Senate Bill 2628 into law.[i]  Senate Bill 2628 provides for a higher level of protection for workers regarding electronic monitoring.  This new bill “requires prior written notice upon hiring and once annually to all employees, informing them of the types of electronic monitoring which may occur.”[ii]

The bill evolved throughout the course of 2021 and was sent to the Governor for signature on October 27, 2021.[iii]  Governor Hochul signed it on November 8, 2021.[iv]  According to the text of the bill, it will be in effect 180 days after it is signed into law, which means the new law will apply effective May 7, 2022.[v]

In relevant part, the bill provides that 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 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, shall give prior written notice upon hiring to all employees who are subject to electronic monitoring. The notice required by this subdivision must be in writing, in an electronic record, or in another electronic form, and acknowledged by the employee either in writing or electronically. Each employer must also post the notice of electronic monitoring in a conspicuous place which is readily available for viewing by its employees who are subject to electronic monitoring.[vi]

The bill further elaborates on the notice and there are certain exceptions.  Most of these exceptions are for database management and system security.  These exceptions will still allow employers to conduct some electronic monitoring without prior written notification, subject to certain rules.  There are also penalties for noncompliance.  The penalty for violation is a maximum civil penalty of five hundred dollars for the first offense, one thousand dollars for the second offense, and three thousand dollars for the third and each subsequent offense.[vii]

Takeaway

Employers will need to review and possibly change their protocols to ensure compliance with the new law.  Given COVID-19 and a remote work environment for many, this new law is applicable and relevant to almost every employer.  It is important employers are aware of this new law and implement new procedures as necessary.

[i] The New York State Senate, Senate Bill S2628, The New York State Senate (last accessed Nov. 23, 2021), https://www.nysenate.gov/legislation/bills/2021/s2628.
[ii] Id.
[iii] The New York State Senate, Senate Bill S2628, The New York State Senate (last accessed Nov. 23, 2021), https://www.nysenate.gov/legislation/bills/2021/s2628.
[iv] Id.
[v] Id
[vi] 2021 NY S.B. 2628.
[vii] 2021 NY S.B. 2628.

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