Employers in New York State must now provide prior written notice and obtain consent upon hiring to inform all employees of the types of electronic monitoring to which they may be subject under A430, a new (and very succinct) law signed by Governor Hochul on November 8, 2021. While the law does not require this notice and consent for existing employees, New York employers should carefully evaluate whether to treat all employees consistently and provide the notice and obtain consent for both new and incumbent employees.
The law defines “employer” broadly as any “individual, corporation, partnership, firm, or association with a place of business in the state.” All employers who engage in monitoring must advise employees that any and all phone conversations, emails, and internet use on devices such as a computer, radio, photoelectronic or photo-optical systems may be subject to monitoring at any and all times and by any and all lawful means.
The notice must be:
- Provided in writing (email is acceptable)
- Acknowledged by the employee in writing or electronically
- Posted in a conspicuous place that can be easily and readily viewed
Exceptions to this new law include: (1) the state or any subdivisions of the state, (2) any processes that are designed to manage the type or volume of incoming or outgoing email, voicemail, or internet usage solely for the purpose of system maintenance and/or protection rather than to target an individual.
The attorney general can enforce this law by issuing civil penalties of $500 for the first offense, $1000 for the second offense, and $3,000 for the third and each subsequent offense.
The law comes into effect May 7, 2022.