electronic monitoring - Horton Management Law

Personal Employee Social Media Accounts

The law protects employees’ “personal accounts”. This term is defined to mean “an account or profile on an electronic medium where users may create, share, and view user-generated content, including uploading or downloading videos or still photographs, blogs, video blogs, podcasts, instant messages, or internet website profiles or locations that is used by an employee or an applicant exclusively for personal purposes.”

Request for Access Prohibited

The new Section 201-i of the New York Labor Law prohibits employers from requesting, requiring, or coercing any employee or applicant to do any of the following regarding personal social media accounts:

Disclose any password or other authentication information;

Access their personal account in the employer’s presence;

Reproduce any photographs, video, or other information contained in a personal account that was accessed through the above prohibited means.

Employers cannot discipline or penalize employees who refuse to provide any of the above information. Similarly, they cannot refuse to hire an applicant on that basis.

Permitted Access

The rules are different for work accounts. Employers may require employees to provide usernames and passwords for “accessing nonpersonal accounts that provide access to the employer’s internal computer or information systems.”

There are several additional exceptions for accounts and devices used for business purposes. For example, employee access to certain websites may be restricted while using company equipment. However, the employer must provide prior notice and the employee must agree to the restriction. Yet, as an “exception” to the general prohibitions, it’s not clear that the law actually imposes an affirmative obligation for employers to obtain such permission as a general matter.

The law also does not prevent management from connecting with employees through social media or viewing information that is voluntarily shared or publicly available through the social media platform.

Workplace Impact

Similar legislation was first introduced in the early days of social media well over a decade ago. In that sense, it is surprising New York has waited this long to get into the game. However, most employers have long since abandoned the types of measures that would be most likely to violate the new prohibitions. Nonetheless, it is important that you understand that there are now express parameters regarding employee personal social media accounts in New York.

On November 8, 2021, New York Governor Kathy Hochul signed a new law requiring employers to notify their employees in advance before engaging in electronic monitoring. The new electronic monitoring notice requirement will take effect on May 9, 2022. It only applies to private (non-governmental) employers. The new law is codified as New York Civil Rights Law Section 52-c.

Practices Requiring Electronic Monitoring Notice

It has long been a best practice to warn employees of the possibility of company review of electronic communications. Now it will be an affirmative statutory requirement in New York.

Beginning May 9, 2022, an employer must provide advance written (or electronic notice) to employees if it “monitors or otherwise intercepts telephone conversations or transmissions, electronic mail or transmissions, or internet access or usage of or by an employee by an electronic device or system, including but not limited to the use of a computer, telephone, wire, radio, or electromagnet, photoelectronic or photo-optical systems.”

This statute covers a wide array of electronic monitoring practices. Presumably, most employers will want to comply with the notice requirement in case they ever decide to engage in such activities.

Timing of Notice

The law says that prior written notice must be given upon hiring. However, it does not specifically indicate how employers must comply regarding employees already working as of the May 9, 2022 effective date.

The notice must be provided in writing or electronically to each employee. The employer must also obtain a written or electronic acknowledgment from each employee.

Employers all have to post the notice “in a conspicuous place which is readily available for viewing by its employees who are subject to electronic monitoring.”

Electronic Monitoring Notice Contents

To match the wording of the statute, notices should specifically advise employees that:

Any and all telephone conversations or transmissions, electronic mail or transmissions, or internet access or usage by an employee by an 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.

Exception

The only exception to the new electronic monitoring notice requirement relates to processes “performed solely for the purpose of computer system maintenance and/or protection.”

Penalties

The New York Attorney General may prosecute any violation of the new law. Maximum civil penalties are $500 for the first offense, $1,000 for the second offense, and $3,000 for subsequent offenses.

Employer Considerations

There are many valid reasons for employers to conduct monitoring of their employees’ electronic activities. These scenarios range from a review of email communications in routine investigations to an analysis of potentially unlawful internet activity. Employers who wish to remain free to engage in such monitoring should proactively meet the requirements of this new law even if they don’t regularly intend to monitor employees’ activity online.

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Tag: electronic monitoring

New York Requires Employers to Give Electronic Monitoring Notice