Jan 26, 2022

“Over the last 20 years, we’ve gone through an unprecedented electronic and digital transformation in the workplace,” said Mark Goldstein, a partner at Reed Smith in New York. “This is an attempted counterbalance at that.” The law — which takes effect May 7 — requires disclosures to employees hired on or after that date. It applies to phone calls, internet searches, and online calls conducted through platforms such as Zoom. The New York attorney general may seek penalties of up to $500 for the first offense, $1,000 for the second offense, and $3,000 for the third offense. Businesses should review hiring and onboarding documents and use standardized language that tracks to the statute if appropriate, said Katharine Liao, a partner at Squire Patton Boggs in New York. “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 said. “Small and large employers, even those with strong practices may want to fine-tune the text of their policies.” Large companies with robust legal teams and employment law expertise are likely already aware of the law, but smaller businesses may not know of the statute or the fact that it applies to them, said Anne Patin, a partner at Seward & Kissel in New York. The law applies to all non-state employers engaged in electronic monitoring with a place of business in New York, regardless of the number of employees or their annual revenue. “Closer to May we will remind clients of their new obligations,” Patin said. “For larger companies, we’ll also reach out to HR departments to make sure the requirements are included in their onboarding procedures.” The law doesn’t contain a private right of action, which means plaintiffs are unlikely to be successful in bringing suit against companies that violate the New York law. Still, that doesn’t mean attorneys won’t try to bring claims under the law, said Kristin Bryan, a senior associate at Squire Patton Boggs in Cleveland. In the privacy arena especially, plaintiffs have sought to “piggyback” various privacy statutes, and some plaintiffs will argue that those laws impose various obligations and duties on employers, Bryan said. By alleging that a defendant failed to meet its statutory obligations, employees could seek to bring common law tort or related claims, she said. New York isn’t viewed as a forum that’s particularly friendly for class action plaintiffs, though, Bryan said.