Tag: email

Electronic Monitoring Notice

New York Requires Employers to Give Electronic Monitoring Notice

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.

 

For more legal updates of interest to New York employers, follow Horton Law on LinkedIn.

2020 NLRB

NLRB 2020 (Webinar Recap)

On January 22, 2020, I presented a complimentary webinar called “NLRB 2020: Updates for All Private Sector Employers”. For those who couldn’t attend the live webinar, we’re happy to make it available for you to watch at your convenience.

In the webinar, we discuss:

  • Employee Policies
  • Email Use
  • Investigatory Confidentiality
  • Representation Election Rule Changes
  • Union Issues

The National Labor Relations Board has a significant impact on private companies throughout the United States. The NLRB not only oversees union elections and management-labor relations, but also enforces employee rights to engage in concerted activities for their mutual aid and protection. Recently, the Board has taken many steps to reverse pro-labor rulings under the prior administration in Washington. We summarize many of those in this webinar.

Don’t have time to watch the whole webinar right now? Click here to download the slides from the webinar.

Why You Should Watch “NLRB 2020”

Whether you currently have unionized employees or not, recent NLRB actions could affect your company. Fortunately, it’s mostly good news for employers.

After several years of restrictive enforcement of the National Labor Relations Act, the NLRB is now reiterating private companies’ rights to run their business. While employees still enjoy many protections, employers have more leeway in several areas that would have been problematic before.

If you are concerned about potential organizing activity, be sure to learn about the new NLRB election rules. These will favor employers compared to the current rules. But the procedures don’t change until April 2020, leaving open the possibility that unions will hurry to pursue organizing campaigns and elections before then.

Plus, if you already have unionized employees, there are also updates that affect you more directly. Recent NLRB decisions restore earlier longstanding views on deferral to arbitration awards, dues checkoff, and union insignias.

We also comment on the current composition of the NLRB Board and how it could change, along with what that could mean for employers.

Don’t Miss Our Future Webinars!

Click here to sign up for the Horton Law email newsletter to be among the first to know when registration is open for upcoming programs!

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Top Posts of 2019

Top Posts of 2019

As the year ends, we again review the most viewed New York Management Law Blog posts from this year. Did you miss any of the top posts of 2019?

These posts reflect some topics that most interested New York employers in 2019. Do they also suggest what will be top of mind in 2020?

Curious about last year? Click to see what posts made the list in 2018.

2020 New York Minimum Wage

Our annual post reminding employers of increases to both minimum wage and the salary threshold for overtime exemptions under state law remained a must-read.

Remember, these changes take effect on December 31, 2019, not January 1st. If you haven’t adjusted accordingly yet, now’s the time!

The required pay levels will continue to rise in the coming years. This post includes charts showing those planned increases.

Recovering Overpaid Wages in New York

Beyond addressing how much you have to pay them, New York also has strict rules about making deductions from employee compensation. Employers can withhold pay to recoup overpaid wages, but must satisfy detailed requirements to do so.

This post provides the basics of when and how employers can get their money back through payroll deductions. Don’t try it without this guidance. Even then, be cautious and seek professional assistance.

Readers were also quite interested in this more general review of the New York Wage Deduction Rules.

How Far Will New York Go?

2019 featured the extensive expansion of employee rights, and we expect more in 2020.

In addition to broader employment discrimination laws, New York imposed a statewide salary history ban. As of January 6, 2020, New York employers may not “seek, request, or require the wage or salary history from an applicant or current employee as a condition”:

  • to be interviewed,
  • of continuing to be considered for an offer of employment, or
  • of employment or promotion.

The State Legislature also passed legislation that would have permitted employees to use Paid Family Leave Benefits for bereavement leave. Governor Cuomo vetoed that law in 2019. But there are indications that the State will revisit the subject in 2020.

Workplace bullying was another item of notable interest among our readers. We wouldn’t be surprised to see New York add new protections in this area in the foreseeable future.

What’s Changing Under the FLSA?

The federal Fair Labor Standards Act governs minimum wage and overtime requirements throughout the United States.

In 2019, the U.S. Department of Labor finalized a rule that changes how some companies will calculate their employees’ overtime pay. The rule takes effect on January 15, 2020. It will generally act to decrease overtime rates.

The U.S. DOL also addressed who qualifies for exemptions from overtime pay in the first place. Beginning January 1, 2020, the weekly salary requirement for the FLSA administrative, executive, and professional exemptions will increase from $455 to $684. However, this probably won’t change much in New York, where the exemption threshold is already higher.

Employers Regain Control Over Company Email Use

As in recent years, the National Labor Relations Board has issued several significant decisions at year-end. Our readers have been most interested in this one about whether employees have the right to use company email for nonwork purposes.

For five years, most non-supervisory employees at private companies had that right. Now, most don’t.

Find out more about why the NLRB reinstated employer control over company property here.

Don’t Stop at the Top Posts of 2019!

I hope you find it helpful to look back at what happened last year, but you should also look forward. For some of the reasons stated above, and others, 2020 could be another big year in employment law. Please continue to follow the New York Management Law Blog for updates.

One great way to keep up with emerging topics in New York labor and employment law is to subscribe to our monthly email newsletter. If you want more frequent news and insights, be sure to follow us on LinkedIn!

See you in 2020!