New Regulations Regarding Electronic Employee Monitoring

As the future of work evolves, current practices will shift to include new technology as well as new regulations. With many businesses now operating with a virtual-hybrid method, how employees are accessing their work and spending their time has become even more significant. Employers have always had methods to check up on their employees and monitor their time at work, whether by walking by their offices or by monitoring their at-work computer access, but there are now more issues to consider regarding both what may need to be monitored as well as how it’s done.

Employers may be monitoring their employees for a number of reasons, including training, measuring productivity, checking compliance with rules, eliminating non-work activities, and checking for inappropriate behavior. This can be done not only through monitoring work emails, computers, and other devices, but also through software that reports on internet usage and blocks specific sites. However, cybersecurity has been a growing threat for some time now, and the worries of employers have increased since many employees began to work virtually. It’s now common practice to monitor how employees access their work, what viruses or malicious content may come from their activities, and even how they’re getting their internet access. With these mounting worries, the privacy of your employees becomes even more important to consider. In New York, new legislation has created some guidelines as to how to properly warn employees of electronic monitoring and protect your business while respecting their privacy.

New York Senate Bill S2628, which becomes effective on May 7^th 2022, outlines how employers must notify their employees of their monitoring practices. While more legislation of this kind is likely to come, for now, the New York law serves as a good general guideline for what to expect with regard to future employee privacy regulations.

The New York law is meant to help balance an employee’s right to privacy with an employer’s need to monitor their work activity, calling for proper notice and acknowledgment of a business’ monitoring activities. It starts by making a business’ monitoring habits transparent, so that employees will understand what is monitored, what is expected of them, and what the consequences of inappropriate activity may be. It will include a written notice expressly stating what forms of communication are to be monitored, including items like telephones, emails, and internet access. The law will require proof of employee acknowledgment, so employers will need to keep some kind of confirmation of each employee’s understanding of their practices. Employers must also post a notice about their electronic monitoring somewhere that’s viewable to their employees.

There is currently no private right of action in the statute. Instead, New York’s Attorney General can enforce the law, with employers who violate the regulations facing fines that start at $500 and build up to $3,000 for three or more offenses. Obviously, these fines can add up quickly so employers should be ready for compliance before the May 7th, 2022 deadline. They can do so by reviewing their policies and implementing methods to bring their practices up to date.

For employers not within New York State, these new regulations may not apply to you at present. However, they may very well become a new standard as more states add regulations involving employee privacy. Thus, having knowledgeable counsel to ensure compliance with existing or upcoming regulations can be pivotal for your business.

The information presented here is for general educational purposes only. It does not constitute legal advice and does not create an attorney-client relationship.