Beginning in May, New York State employers will have to disclose electronic monitoring of workers when they’re using technology such as videoconferencing or the internet.
Bloomberg notes the move comes as workers depend increasingly on technology to get their jobs done. On the other hand, the law comes into effect as privacy protections continue to expand and businesses contend with both consumer-specific and employee-specific privacy regulations.
Mark Goldstein, an attorney with the law firm Reed Smith LLP, told Bloomberg the law is “an attempted counterbalance” to 20 years of electronic and digital transformation.
When it takes effect on May 7, the law will require employers to disclose their monitoring of phone calls, internet searches and online calls conducted through platforms such as Zoom, Bloomberg said. Penalties range from $500 for a first offense to $3,000 for a third.
And because the law defines affected activities broadly, “it is likely that most private employers in the state will be impacted by the law,” wrote the law firm Ogletree Deakins.
Preparing for Change
The law’s implementation kicks up a range of compliance issues. To prepare, employers should review hiring and onboarding documents to make sure they align with the statute’s requirements, said Katharine Liao, a partner at Squire Patton Boggs.
“Practically 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,” Liao told Bloomberg. “Small and large employers, even those with strong practices may want to fine-tune the text of their policies.”
The law applies to all non-state employers with a place of business in New York, regardless of their headcount or annual revenue.
No Tidal Wave
Attorneys say it may be difficult for employees to bring claims under the law. For one thing, New York isn’t seen as being particularly friendly for class action plaintiffs, they said.
“While there is still a risk, I don’t see it as becoming the next California or Illinois in terms of privacy litigation,” said Kristin Bryan, a senior associate at Squire Patton Boggs. “It’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.”
“New York City is becoming one of the most employee-friendly jurisdictions in the country, and New York state is not far behind,” added Jonathan Wexler, a partner at Vedder Price. “This may be a trend to a limited extent in states that are like-minded, but I don’t see it sweeping the nation.”
By Mark Feffer
Mark Feffer is executive editor of RecruitingDaily and the HCM Technology Report. He’s written for TechTarget, HR Magazine, SHRM, Dice Insights, TLNT.com and TalentCulture, as well as Dow Jones, Bloomberg and Staffing Industry Analysts. He likes schnauzers, sailing and Kentucky-distilled beverages.
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