Two new workplace laws coming down the pike for NYS

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Monitoring how employees use the internet, as well as company email and phones, is common practice, but employers in New York soon must tell their workers they are doing so.

State lawmakers amended the civil rights law in the fall, requiring employers to notify employees that they may be subject to electric monitoring while using company devices or systems. The new law goes in effect on May 2.

It’s one of two significant changes to the law regarding the workplace. The other covers whistleblower protections and it takes effect later this month.

Beginning Jan. 26, employees, former employees and independent contractors are protected from retaliation for reporting to a supervisor or public entity any conduct that they reasonably believe violates any law.

“Up until this year, it only covered an employee who reported a violation of law that endangered the public or an employee,” said Eugene Welch, litigation partner at Tully Rinckey PLLC. “Now they have protection if they report any violation of the law.”

Another critical part of the amendment is that the employee now must only have a “reasonable” belief that a law is or has been violated. Evidence of an actual violation is no longer necessary.

Suppose an employee, or even an independent contractor, suspects someone at the company is under-reporting or over-reporting expenses for personal gain or company gain. Even if the employee is wrong in his suspicion, the law provides protection from any retaliation if the actions are reported.

Employees who believe they have been punished for being a whistleblower are permitted to seek a variety of relief, including reinstatement if they were fired or demoted, repayment of lost wages and even punitive damages if retaliation was willful or malicious, the statute states. The employer could face a fine of up to $10,000.

Employer notification of possible electronic monitoring, meanwhile, will become law in the spring. Welch said employers must post in a conspicuous location an advisory that phone conversations, voicemail and email may be monitored, along with any internet use.

Any new hire must receive written notice of the electronic monitoring policy.

The purpose of the new statute ensures there is no ambiguity or surprise for employees, and curtails the chance of invasion-of-privacy claims, Senate bill S4586A says.

“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,” the bill reads.

The law applies to all businesses with the exception of the State of New York and all governmental subdivisions.

Employers often want to know how employees are using the internet, and also if employees are spending too much time on non-work activities while on the clock.

“People have to realize they’re getting paid to work, not shop,” Welch said.

Exemptions include processes designed to manage volume or specific types of email, voicemail or internet usage or processes performed for the purpose of system maintenance and protection.

There is a graduated scale for penalties, starting with a $500 fine for the first offense, $1,000 for the second and $3,000 for the third. Enforcement will be provided by the New York State Attorney General’s office.

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