The New York State Senate

                    S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                  3871

                       2009-2010 Regular Sessions

                          I N  A S S E M B L Y

                            January 28, 2009
                               ___________

Introduced  by M. of A. ROSENTHAL, EDDINGTON, MAISEL, JAFFEE, ZEBROWSKI,
  REILLY, GOTTFRIED, CAHILL, JOHN, PERALTA, KELLNER  --  Multi-Sponsored
  by  -- M. of A. GALEF, GREENE, HEASTIE, KOON, PHEFFER, SCHIMEL -- read
  once and referred to the Committee on Labor

AN ACT to amend the labor law, in relation  to  requiring  employers  to
  provide prior notice to employees when they are engaging in electronic
  monitoring

  THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section 1. The labor law is amended by adding a new section  203-e  to
read as follows:
   S  203-E.  EMPLOYERS  ENGAGED  IN ELECTRONIC MONITORING; PRIOR NOTICE
REQUIRED. 1. FOR PURPOSES OF THIS SECTION,  THE  FOLLOWING  TERMS  SHALL
HAVE THE FOLLOWING MEANINGS:
  (A)  "EMPLOYER"  MEANS  ANY PERSON, FIRM OR CORPORATION, INCLUDING THE
STATE AND ANY POLITICAL SUBDIVISION OF THE STATE WHICH HAS EMPLOYEES;
  (B) "EMPLOYEE" MEANS ANY PERSON WHO PERFORMS SERVICES FOR AN  EMPLOYER
IN  A BUSINESS OF THE EMPLOYER, IF THE EMPLOYER HAS THE RIGHT TO CONTROL
AND DIRECT THE PERSON AS TO (I) THE RESULT TO  BE  ACCOMPLISHED  BY  THE
SERVICES,  AND (II) THE DETAILS AND MEANS BY WHICH SUCH RESULT IS ACCOM-
PLISHED; AND
  (C) "ELECTRONIC MONITORING" MEANS THE COLLECTION OF INFORMATION ON  AN
EMPLOYER'S  PREMISES  CONCERNING EMPLOYEES' ACTIVITIES OR COMMUNICATIONS
BY ANY MEANS OTHER THAN DIRECT  OBSERVATION,  INCLUDING  THE  USE  OF  A
COMPUTER,  TELEPHONE,  WIRE,  RADIO, CAMERA, ELECTROMAGNETIC, PHOTOELEC-
TRONIC OR PHOTO-OPTICAL SYSTEMS, BUT NOT  INCLUDING  THE  COLLECTION  OF
INFORMATION  (I) FOR SECURITY PURPOSES IN COMMON AREAS OF THE EMPLOYER'S
PREMISES WHICH ARE HELD OUT FOR USE BY THE  PUBLIC,  OR  (II)  WHICH  IS
PROHIBITED UNDER STATE OR FEDERAL LAW.
  2.  (A)  EXCEPT AS PROVIDED IN PARAGRAPH (B) OF THIS SUBDIVISION, EACH
EMPLOYER WHO ENGAGES IN ANY TYPE OF  ELECTRONIC  MONITORING  SHALL  GIVE

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD06630-01-9

A. 3871                             2

PRIOR  WRITTEN NOTICE UPON HIRING AND ONCE ANNUALLY TO ALL EMPLOYEES WHO
MAY BE AFFECTED, INFORMING THEM OF THE TYPES  OF  MONITORING  WHICH  MAY
OCCUR.  THE NOTICE REQUIRED BY THIS PARAGRAPH 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, IN A CONSPICUOUS PLACE WHICH IS READILY AVAILABLE FOR  VIEWING  BY
ITS  EMPLOYEES,  A  NOTICE CONCERNING THE TYPES OF ELECTRONIC MONITORING
WHICH THE EMPLOYER MAY ENGAGE IN.
  (B) WHEN (I) 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
  (II)  ELECTRONIC  MONITORING  MAY PRODUCE EVIDENCE OF THIS MISCONDUCT,
THE EMPLOYER MAY CONDUCT MONITORING WITHOUT GIVING PRIOR WRITTEN NOTICE.
  3. (A) IN ANY CIVIL ACTION ALLEGING A VIOLATION OF THIS  SECTION,  THE
COURT MAY:
  (I)  AWARD  DAMAGES  AND  REASONABLE  ATTORNEYS'  FEES  AND COSTS TO A
PREVAILING PLAINTIFF; AND
  (II) AFFORD INJUNCTIVE RELIEF AGAINST ANY  EMPLOYER  THAT  COMMITS  OR
PROPOSES TO COMMIT A VIOLATION OF THIS SECTION.
  (B)  THE  MAXIMUM  CIVIL PENALTY SHALL BE 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.
  4.  THE PROVISIONS OF THIS SECTION SHALL NOT BE DEEMED TO BE AN EXCLU-
SIVE REMEDY AND SHALL NOT OTHERWISE LIMIT OR BAR ANY PERSON FROM  PURSU-
ING  ANY  OTHER REMEDIES AVAILABLE UNDER ANY OTHER LAW, STATE OR FEDERAL
STATUTE, OR THE COMMON LAW. THE VIOLATIONS OF THIS SECTION BY AN EMPLOY-
ER SHALL NOT BE ADMITTED INTO EVIDENCE FOR THE PURPOSE OF, OR USED AS, A
DEFENSE TO CRIMINAL LIABILITY OF ANY PERSON IN ANY COURT IN THIS STATE.
  5. THE PROVISIONS OF THIS SECTION SHALL NOT APPLY TO A CRIMINAL INVES-
TIGATION. ANY INFORMATION OBTAINED IN THE COURSE OF A CRIMINAL  INVESTI-
GATION  THROUGH THE USE OF ELECTRONIC MONITORING MAY BE USED IN A DISCI-
PLINARY PROCEEDING AGAINST AN EMPLOYEE.
  6. 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 immediately.

                    S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                 3871--A

                       2009-2010 Regular Sessions

                          I N  A S S E M B L Y

                            January 28, 2009
                               ___________

Introduced  by  M.  of  A. ROSENTHAL, MAISEL, JAFFEE, ZEBROWSKI, REILLY,
  GOTTFRIED, CAHILL, JOHN, PERALTA, KELLNER -- Multi-Sponsored by --  M.
  of A. GALEF, HEASTIE, KOON, PHEFFER, SCHIMEL -- read once and referred
  to the Committee on Labor -- reported and referred to the Committee on
  Codes  --  committee  discharged,  bill  amended, ordered reprinted as
  amended and recommitted to said committee

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:

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
A                                                          LBD06630-03-9

A. 3871--A                          2

  (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, AND
  (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.