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New York Employers Need Consent to Monitor Employees

Governor Kathy Hochul signed into law a bill requiring private New York employers to provide newly hired employees with written notice of possible electronic monitoring during their employment. The law applies to all private employers in the state. Employees must also acknowledge their consent in writing. The law defines electronic monitoring as telephone conversations, emails, internet access, or usage by any electronic device. The law makes an exception for electronic monitoring used to maintain and/or protect computer systems, processes designed to manage the volume of incoming/outgoing email, telephone voicemail, or internet usage, and monitoring not targeted to monitor a particular individual. Where employers are found to have violated the law, the state will subject them to fines that increase with each violation. The law does not provide employees with a private right of action.

The federal Electronic Communications Privacy Act prohibits the intentional intercepting of oral, wire, and electronic communications but carves out a business purpose exception and a consent exception. Legitimate business reasons may only apply when the employer owns the systems being used. Courts have upheld explicit employer policies that put employees on notice that their work communications are not private and subject to monitoring. In those instances, employees have implied their consent by continuing to work for those employers. Delaware and Connecticut have enacted laws similar to New York, requiring employers to provide employees with written notice of electronic monitoring and an employee acknowledgment. Some states also prohibit employers from asking for employee social media login information or otherwise asking employees to share their social media with employers.