Requires prior written notice upon hiring and once annually to all employees, informing them of the types of electronic monitoring which may occur; when an employer has reasonable grounds to believe that employees are engaged in conduct which (1) violates the law, (2) violates the legal rights of the employer or the employer's employees, or (3) creates a hostile workplace environment, and electronic monitoring may produce evidence of this misconduct, the employer may conduct monitoring without giving prior written notice.
BILL NUMBER: S4755 REVISED 03/23/10
TITLE OF BILL : An act to amend the civil rights law, in relation to electronic monitoring
PURPOSE OR GENERAL IDEA OF BILL : To require private employers who engage in monitoring or intercepting electronic communications of any employee by any electronic device or system to provide notice of such monitoring.
SUMMARY OF SPECIFIC PROVISIONS : This bill amends the civil rights law by adding a new section 52(a).
Subdivision 1 defines for the purposes of the section the term employer, which shall not include the state or any political subdivision of the state.
Subdivision 2 requires private employers engaging in electronic monitoring, which includes monitoring or otherwise intercepting telephone conversations or transmissions, electronic mail or transmission, or internet usage of or by the employee, by any electronic device or system, to give prior notice to employees in writing, in an electronic record, or in another electronic form. The notice must be acknowledged by the employee either in writing or electronically. Employers are also required to post the notice in a conspicuous place which is readily accessible to employees.
The notice shall contain the form of communication and/or computer usage that will be monitored, means by which monitoring will be accomplished, frequency of monitoring, and manner in. which the information will be collected, stored, and used.
Subdivision 3 allows courts to award damages and reasonable attorneys' fees to a prevailing plaintiff as well as afford injunctive relief against any employer that commits or proposes to commit a violation of this section.
Subdivision 4 authorizes the attorney general to enforce the provisions of the section. Any employer 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.
Subdivision 5: This section does not apply to processes undertaken by employers to manage the type or volume of incoming or outgoing electronic mail or telephone voice mail or internet usage for the purpose of computer system maintenance and/or protection.
JUSTIFICATION : Notifying employees of computer monitoring protects employee privacy by making sure that they understand the consequences of inappropriate internet activity.
The American Management Agency's 2007 Electronic Monitoring and Surveillance Survey concluded that bosses who fired employees for internet misuse cited the two main reasons as violation of company policy and excessive personal use. And according to a Harris poll, a general lack of awareness of an employers' monitoring policy was stated by four out of every ten employees from a pool of five-hundred plus employees. In addition, present computer software can allow for employers to see what is on an employee's screen or stored in an employee's computer terminal and hard disk, monitor internet usage such as web-surfing and electronic mail, and monitor idle time or away
time from an employee's computer terminal without prior notification of electronic monitoring to employees.
By making guidelines of appropriate and inappropriate internet use public, employees will be less likely to undermine company standards. Companies will retain the right to monitor computer usage, simply with the stipulation that employees are informed of surveillance practices. This knowledge will increase transparency within the organization and help to avoid lawsuits and litigation regarding invasion of privacy. Notification of computer surveillance will permit employees to make informed decisions about their internet use with full knowledge of the ramifications of their actions, while supporting companies' ability to monitor internet activity within their organization.
This legislation will not apply to State employers or any political subdivision employers of this State; rather, it applies to private employers who already engage in monitoring or intercepting of electronic communications of any employee by any electronic device or system.
PRIOR LEGISLATIVE HISTORY : New bill.
FISCAL IMPLICATIONS : None.
EFFECTIVE DATE : This act shall take effect on the one hundred eightieth day after it shall have become law.
STATE OF NEW YORK ________________________________________________________________________ 4755 2009-2010 Regular Sessions IN SENATE April 27, 2009 ___________Introduced by Sen. ADDABBO -- read twice and ordered printed, and when printed to be committed to the Committee on Codes AN ACT to amend the civil rights law, in relation to electronic monitor- ing THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM- BLY, DO ENACT AS FOLLOWS: Section 1. The civil rights law is amended by adding a new section 52-a to read as follows: S 52-A. EMPLOYERS ENGAGED IN ELECTRONIC MONITORING; PRIOR NOTICE REQUIRED. 1. FOR PURPOSES OF THIS SECTION, EMPLOYER MEANS ANY INDIVID- UAL, 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, TELE- PHONE, WIRE, RADIO, OR ELECTROMAGNETIC, PHOTOELECTRONIC OR PHOTO-OPTICAL SYSTEMS, SHALL GIVE PRIOR WRITTEN NOTICE UPON HIRING AND ONCE ANNUALLY 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. (B) THE NOTICE SHALL CONTAIN THE FOLLOWING: (I) THE FORM OF COMMUNICATION AND/OR COMPUTER USAGE THAT WILL BE MONI- TORED, (II) THE MEANS BY WHICH MONITORING WILL BE ACCOMPLISHED, (III) THE FREQUENCY OF MONITORING, ANDEXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets [ ] is old law to be omitted. LBD06630-04-9 S. 4755 2
(IV) THE MANNER IN WHICH THE INFORMATION OBTAINED BY SUCH MONITORING WILL BE COLLECTED, STORED, AND USED. 3. IN ANY CIVIL ACTION ALLEGING A VIOLATION OF THIS SECTION, THE COURT MAY: (A) AWARD DAMAGES AND REASONABLE ATTORNEYS' FEES AND COSTS TO A PREVAILING PLAINTIFF; AND (B) AFFORD INJUNCTIVE RELIEF AGAINST ANY EMPLOYER THAT COMMITS OR PROPOSES TO COMMIT A VIOLATION OF THIS SECTION. 4. 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. 5. THE PROVISIONS OF THIS SECTION SHALL NOT APPLY TO PROCESSES THAT ARE DESIGNED TO MANAGE THE TYPE OR VOLUME OF INCOMING OR OUTGOING ELEC- TRONIC 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. S 2. This act shall take effect on the one hundred eightieth day after it shall have become a law.