Client Alert 
April 27, 2022

NEW NOTICE & POSTING REQUIREMENT FOR
NY EMPLOYERS THAT MONITOR EMPLOYEES’ ELECTRONIC COMMUNICATIONS
Effective May 7, 2022, employers in New York that monitor or otherwise intercept employees’ telephone conversations, electronic mail (email), or internet access or usage 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 (“Electronic Monitoring”), will be subject to new notice and posting requirements.

Electronic Monitoring does not include processes that are designed to manage the type or volume of incoming or outgoing electronic mail or telephone voice mail or internet usage, that are not targeted to monitor or intercept the electronic mail or telephone voice mail or internet usage of a particular individual, and that are performed solely for the purpose of computer system maintenance and/or protection (e.g., firewalls, spam filters).

Notice & Acknowledgment Requirement for New Hires

Employers must provide written notice of their Electronic Monitoring to all new employees upon hire, and have that notice acknowledged by the employee. Employers should consider including the notice in the employee handbook for ease of administration.

The notice should advise that any and all telephone conversations or transmissions, electronic mail or transmissions, or internet access or usage 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 may be subject to monitoring at any and all times and by any lawful means.

Employees hired before May 7, 2022 need not be provided with this notice, but employers are free to do so.

Posting of Notice

Employers must also post a notice they are conducting Electronic Monitoring in a conspicuous place, such as where the required minimum wage and other employment-related posters are located. At this time, New York has not issued a model poster.

Enforcement

Employers that fail to comply with these new requirements may be subject to civil penalties as follows: up to $500 for the first offense, up to $1,000 for the second offense and up to $3,000 for the third and each subsequent offense. 

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If you have questions or would like additional information, please contact our Labor & Employment attorneys or the primary EGS attorney with whom you work.
This memorandum is published solely for the informational interest of friends and clients of Ellenoff Grossman & Schole LLP and should in no way be relied upon or construed as legal advice.