Submission Date:
Question:
We got a question about implementing the new Section 52-c of the New York Civil Rights Law, which requires employers to notify employees if their workplace communications will be monitored.
Answer:
New York Civil Rights Law Section 52-c, captioned "Employers engaged in electronic monitoring; prior notice required" went into effect on May 7, 2022.
As laws go, it is fairly short, so I have included the full text below this answer.
What does the law require? And do those requirements have any special impact and library and other cultural and educational institutions?
The law requires potentially 5 things:
First, the library/museum/historical society/archive/etc. needs to determine if they are considered an "employer" for purposes of this law.
In that regard, the law helpfully states: "For purposes of this section, employer means any individual, corporation, partnership, firm, or association with a place of business in the state. It shall not include the state or any political subdivision of the state."
This means that many institutions who may be a member of a regional library council--private educational institutions, museums, historical societies, association libraries, based in New York--are without question to be considered "employers" under this law.
For school district libraries and special district libraries, or confederated library systems, until there is strong evidence otherwise (for instance, a union contract, policy, or cooperation agreement expressly stating that the library employees are employees of the district or a participating municipality), it will be wise to consider it to apply.
For municipal libraries and other chartered institutions whose employees are paid and otherwise treated as municipal employees[1], following the municipality's policy on this makes sense...again, until we get firm guidance otherwise.
Second, the library/museum/historical society/archive/etc. needs to determine if they are "engaged in electronic monitoring", which is the status by which an "employer" (as defined) must comply.
This requires a bit of self-reflection on behalf of the employer. Looking to the law, the qualifying activities are:
monitoring or otherwise intercepting telephone conversations or transmissions, AND/OR
monitoring or otherwise intercepting electronic mail or transmissions, AND/OR
monitoring or otherwise intercepting internet access or usage of or by an employee
BY USING
any electronic device or system, including but not limited to the use of: a computer, telephone, wire, radio, or electromagnetic, photoelectronic or photo-optical systems.
Whoa.
To truly analyze this, an employer should take a deep look at the way telephone, electronic mail, and Internet usage is monitored at the institution.
Examples of actions that would count as "monitoring" under this law are:
- Listening in on phone calls on another phone line
- Recording and listening to phone calls
- Reading employee e-mail via administrative access
- Using cameras or software to monitor Internet usage
Examples of actions that would NOT count as "monitoring” under this law are:
- Listening in on phone calls because one's desk is nearby
- Listening in on phone calls through the HVAC ducts (although that is creepy)
- Reading employee e-mail over the employee's shoulder (also creepy!)
- One employee reporting that they visually observed another employee online gambling during work, and investigating that claim by asking the employee about it
(Notably, processes that "are designed to manage the type or volume of incoming or outgoing
electronic mail or telephone voice mail or internet usage, that are not targeted to monitor or intercept the electronic mail or telephone voice mail or internet usage of a particular individual, and that are performed solely for the purpose of computer system maintenance and/or protection" do not count as "monitoring.”)
Third, employers who find they are engaging in "monitoring" should assess if the monitoring impacts only one category of employee, or if every employee may be subject to some type of monitoring. This determination should be made in writing, so the required next steps can be carefully documented as having been followed.
Fourth, if the institution is an "employer” under this law, and engages in any of the monitoring described above, it must implement a practice of giving "prior written notice, upon hiring" to all employees who are subject to electronic monitoring. This can be notice given only to a certain category of employees who are so subject, or it can be to every new employee just to be safe.
Here is a sample pre-hire notice that tracks the language of the law:
Per Section 52-c of the New York Civil Rights Law, prior to your hire, you are advised that per EMPLOYER NAME policy and in furtherance of its mission and legal compliance, any and all telephone conversations or transmissions, electronic mail or transmissions, or internet access or usage by an employee by any EMPLOYER NAME 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.
It can be delivered either in hard copy, or electronically, but...
Fifth, after giving the pre-hire notice is delivered, the employer must make sure it has been "acknowledged" by the employee (either in writing, or electronically).
Here is a sample acknowledgement that tracks the language of the law:
I acknowledge that prior to my hire, I was advised that any and all telephone conversations or transmissions, electronic mail or transmissions, or internet access or usage by an employee by electronic device or system, including but not limited to the use of a computer, telephone, wire, radio or electromagnetic, photoelectronic or photo-optical systems at EMPLOYER NAME may be subject to monitoring at any and all times and by any lawful means.
NAME:
SIGNATURE [OR METHOD OF ELECTRONIC ACKNOWLEDGEMENT]
Sixth, the employer must post the notice in a "conspicuous place" (a place where the other employee notices, such as workers comp coverage are posted, is good), so the employees who are subject to electronic monitoring can see it.
Here is a sample posting notice that tracks the language of the law:
Per Section 52-c of the New York Civil Rights Law, employees are advised that per EMPLOYER NAME policy and in furtherance of its mission and legal compliance, any and all telephone conversations or transmissions, electronic mail or transmissions, or internet access or usage by an employee by any EMPLOYER NAME 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.
It is interesting to note that unlike other mandatory employee notice laws, the new Section 52-c of the Civil Rights Law does not require specific inclusion in an employee handbook or personnel manual. This makes sense, however, since most hiring manuals are not provided until after the person has accepted the job, and this law specifically requires that notification be "prior to hire". So, while there is no harm in including it in that manual as well, it is important not to just rely on inclusion in an employee manual to meet the requirements of the pre-hire notice and acknowledgement.
And what about employers who currently assess their actions and determine that they are not currently engaging in any monitoring or interception that would trip the requirements of this law? Do they not have to make or post the notice?
Unfortunately, I have to urge caution. At any moment, a complaint could be received under a whistleblowing policy or a sexual harassment policy, that requires the employer to use "electronic means" to review computer records, internet use, and records in employee e-mail (and perhaps even recorded voicemail?). While I would argue that it should, the law makes no distinction between employers who routinely engage in such monitoring, and employers who may sporadically use that type of monitoring to address unusual circumstances.
Therefore, for employers whose employees regularly use the Internet and e-mail, it is wise to make this notification.
That said, there is no restriction on adding a caveat to the posted the notification language, such as:
Per Section 52-c of the New York Civil Rights Law, employees are advised that per EMPLOYER NAME policy and in furtherance of its mission and legal compliance, any and all telephone conversations or transmissions, electronic mail or transmissions, or internet access or usage by an employee by any EMPLOYER NAME 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. While we make this notification, employees are further notified that during the order ordinary course of business, routine and consistent monitoring is not conducted. However, because EMPLOYER NAME may need to monitor such resources as part of an investigation or under special circumstances, we are notifying the workforce of this possibility, as required by law.
Thank you for a timely and important question.
https://www.nysenate.gov/legislation/laws/CVR/52-C%2A2
SECTION 52-C*2
Employers engaged in electronic monitoring; prior notice required
Civil Rights (CVR) CHAPTER 6, ARTICLE 5
*§ 52-c. Employers engaged in electronic monitoring; prior notice
required. 1. For purposes of this section, employer means any
individual, corporation, partnership, firm, or association with a place
of business in the state. It shall not include the state or any
political subdivision of the state.
2. (a) Any 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, including but not limited to the use of a computer,
telephone, wire, radio, or electromagnetic, photoelectronic or
photo-optical systems, shall give prior written notice upon hiring to
all employees who are subject to electronic monitoring. The notice
required by this subdivision shall be in writing, in an electronic
record, or in another electronic form and acknowledged by the employee
either in writing or electronically. Each employer shall also post the
notice of electronic monitoring in a conspicuous place which is readily
available for viewing by its employees who are subject to electronic
monitoring.
(b) For purposes of written notice required by paragraph (a) of this
subdivision, an employee shall be advised that any and all telephone
conversations or transmissions, electronic mail or transmissions, or
internet access or usage by an employee by any 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.
3. The attorney general may enforce the provisions of this section.
Any employer found to be in violation of this section shall be subject
to a maximum civil penalty of five hundred dollars for the first
offense, one thousand dollars for the second offense and three thousand
dollars for the third and each subsequent offense.
4. The provisions of this section shall not apply to processes that
are designed to manage the type or volume of incoming or outgoing
electronic mail or telephone voice mail or internet usage, that are not
targeted to monitor or intercept the electronic mail or telephone voice
mail or internet usage of a particular individual, and that are
performed solely for the purpose of computer system maintenance and/or
protection.
* NB There are 2 § 52-c's
[1] To be clear, even when this is the case, when it comes to public libraries, it is the library's board of trustees who controls hiring, compensation, evaluation, and other terms of employment. See Education Law 226(7).
