As of May 7, 2022, new amendments to the New York Civil Rights Law (linked here) requiring New York employers to provide notice of electronic monitoring to employees went into effect. If your company has not already taken necessary steps towards compliance, here is what you need to know.
Who does the law apply to?
Basically everyone – the new law applies to “[a]ny 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 . . .”
The law defines “employer” broadly, covering “any individual, corporation, partnership, firm, or association with a place of business in the state.” As such, most private employers, regardless of size, are covered by the new law.
What is covered?
In classic fashion, the law does not define the terms “monitor” or “intercept” and New York state has issued no interpretive guidance to date to provide any clarity.
As one point of guidance, New York courts, like many federal courts, have construed the term “intercept,” as used in the Federal Wiretap Act, narrowly to require that the interception of an electronic communication be contemporaneous with the transmission of that communication. See, e.g., Tantaros v. Fox News Network, LLC, No. 17 CIV. 2958 (GBD), 2018 WL 2731268, at *7 (S.D.N.Y. May 18, 2018). Assuming the term “intercept” will be construed in a similar way under this law, then notice obligations...
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