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Electronic Monitoring/ continued from page 1 penalty fee. Interestingly, Connecticut's Law is similar to New York's Law. It requires employers to give written notice to employees who would be subject to electronic monitoring and display the information in an open place. The law also attracts the same penalty structure as the New York law.

What is the New York Electronic Monitoring Law? The law aims to promote employers' transparency, especially towards new employees, on communications issues through electronic devices or systems. Specifically, it states that: 'Any telephone transmission or conversations, electronic transmission or mail or internet usage or access by an employee through any electronic device or system, including but not limited to the use of a computer, wire, telephone, radio or electromagnetic, photoelectronic or photo-optical systems may be monitored at all times and by any lawful means.'

What Does the Bill Mean? It simply means that employers must obtain an acknowledgment of the written or electronic notice to employees and openly display the information of this practice in the workplace; otherwise, they face penalties for violating the law. Some employers arguably, already provide notice of monitoring as part of their cybersecurity privacy programs or, in some cases, to limit employees' claims to privacy in using the employer's email and other electronic systems.

Which Types of Businesses and Individuals Are Affected? In contrast to other civil laws, the Electronic Monitoring law applies to any private individual or entity, irrespective of size, with a place of operation or business in New York. This includes quite a substantial number of entities.

So, what Employee-Related Electronic Activities Are Covered or Exempted? The law applies broadly to content such as conversations, e-mails, access, usage, and transmissions on devices like telephone, electronic mail, internet, of or by an employee. It also includes electronic devices or systems such as computers, wires, radio, photoelectronic, photo-optical, or electromagnetic systems. Although the law is broad, it does not cover specific processes that "manage the volume or type of incoming or outgoing telephone voice mail, internet usage or electronic." The law also does not include processes "that are not targeted to intercept or monitor the telephone usage the electronic mail or telephone usage of a particular individual." It also does not cover processes "performed solely for computer system protection and maintenance." Moreover, the effect on nonresident remote workers and employees who use their devices for work under the "Bring-Your-Own-Device" (BYOD) program is unclear.

What Are Some of the Compliance Obligations? The law requires private employers that conduct this activity to: •Provide written notice to all employees before commencement of electronic monitoring. •Post a statement in a "visible place which is readily available for viewing" by affected employees. •Provide the statement in writing or an electronic form. •Ensure employees acknowledge the information in writing or electronically.

The Information Required in the Notice •Under the law, employers must notify employees that "any telephone transmission or conversations, electronic transmissions or mail, or internet access or usage by an employee by any electronic device or system" may be subject to monitoring "at any times and by any lawful means." •This written notice must advise employees they may be monitored, including on "computer, telephone, wire, radio or electromagnetic, photoelectronic or photo-optical systems."

Evidence of Notice to Employees Affected employees subject to electronic monitoring are expected to acknowledge receipt of the notice, "either electronically or written," and the evidence saved by the employer.

When Should Employees Be Notified? As an initial step, all private employers should consider updating their existing policies to ensure compliance with these requirements. Afterward, all existing employees can be provided a written notice of the electronic monitoring before the May 7, 2022, mandate. While for new hires, employers must provide their new employees with the notice "upon being hired."

Consequences of Violating the Law? The New York State Attorney General and her office have the power to impose civil penalties for violations of this law. In particular, employers found to violate the law are subject to civil penalties ranging from $500 for a first offense to $3,000 for the third offense per violation. Next Steps for New York Employers Given the broad definition of electronic communication, most private employers will be impacted by the law. Please note that: •The employer should conduct an organizational electronic monitoring audit. To include all electronic devices, systems, and information technology practices, including compliance, security, regulatory needs, and an in-depth understanding of how employees' electronic usage may be monitored or intercepted. •Draft a consistent notice that accurately reflects practices regarding monitoring or intercepting e-mails and other electronic systems, including telephone calls and internet usage. Also include an acknowledgment section and provide the document to new employees during the onboarding process. •Update existing handbook(s) and any other relevant policies for clarity •Collect acknowledgment electronically or on paper with evidence upon the commencement of employment and before any monitoring or intercepting. •Post notice of electronic monitoring in a noticeable place either physically, online, or both, especially for employees likely affected.

What New York Employees Must Know It is advised that all employees endeavor to always maintain professionalism. Under the law, all official-related communications can be tracked, which provides employers and managers with the evidence to continuously evaluate and measure the employee's performance. p