As Katharine Liao and Kristin Bryan have previously discussed at CPW, beginning on May 7, 2022, employers in New York State who engage in electronic monitoring of employee communications will be required to notify their workers of such monitoring.

S2628, signed into law on November 8, 2021, requires all employers in the state of New York to provide prior written notice to newly hired employees if they intend to monitor or otherwise intercept telephone conversations or transmissions, email, 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.

Katharine and Kristin were recently interviewed by Bloomberg Law’s Jake Holland about this development.  Katharine observed that “[b]usinesses should review hiring and onboarding documents and use standardized language that tracks to the statute if appropriate.”  She additionally commented that “[p]ractically speaking, this is a reminder to make your policies clear in employee handbooks, and to review offer letters or employment agreements, confidentiality agreements, and electronic communications policies.”

Kristin additionally provided her insights as to how this new data privacy law was unlikely to change the litigation landscape in New York.  She commented that given the statute’s lack of a private right of action, “[i]t’s unlikely that violations of this new law could be used as a predicate for creating new theories of liability in data privacy class actions.”  However, she noted, there are various ways in which creative plaintiffs’ attorneys could still seek to capitalize off of this development, as covered in the full article.

Katharine’s and Kristin’s full comments and the article can be accessed here.