NY State Senate Bill 2009-S4362

Senate Bill S4362

2009-2010 Legislative Session

Requires prior written notice upon hiring and once annually to all employees, informing them of the types of electronic monitoring which may occur

download bill text pdf

Archive: Last Bill Status - In Senate Committee Labor Committee

Introduced
- In Committee Assembly
- In Committee Senate
- On Floor Calendar Assembly
- On Floor Calendar Senate
- Passed Assembly
- Passed Senate
Delivered to Governor
Signed By Governor

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Actions

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	Assembly Actions - Lowercase Senate Actions - UPPERCASE
Jan 06, 2010	referred to labor
Apr 22, 2009	referred to labor

2009-S4362 (ACTIVE) - Details

Current Committee:: Senate Labor
Law Section:: Labor Law
Laws Affected:: Add §203-e, Lab L
Versions Introduced in 2011-2012 Legislative Session:: S2656

2009-S4362 (ACTIVE) - Summary

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.

2009-S4362 (ACTIVE) - Sponsor Memo

                                 BILL NUMBER:  S4362

 TITLE OF BILL :
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


 PURPOSE OR GENERAL IDEA OF BILL :
To require employers who engage in monitoring of employee electronic
communication to provide notice.

 SUMMARY OF SPECIFIC PROVISIONS :
This bill amends the labor law by adding a new section 203-e.

Subdivision 1 defines for the purposes of the section the following
terms: employer, employee, and electronic monitoring.

Subdivision 2 requires employers engaging in electronic monitoring 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
require to post in a conspicuous place a notice outlining the types of
electronic monitoring the employer may engage in. Subdivision 2
creates an exception in which an employer may monitor the electronic
communications of its employees without notice when the employer has

reasonable grounds to believe that employees are engaged in conduct
which violates the law, violates the legal rights of the employer or
other employees, or creates a hostile workplace environment.

Subdivision 3 sets a maximum civil penalty for each violation at 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. It also 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 specifies that the provisions of the section do not
constitute an exclusive remedy.

Subdivision 5 provides that this section does not apply to information
obtained for a criminal investigation.

Subdivision 6 specifies that the 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. According to the American Management Agency's 2007
Electronic Monitoring and Surveillance Survey, bosses who fired
employees for internet misuse cited the two main reasons as violation
of company policy and excessive personal use. 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.
 PRIOR LEGISLATIVE HISTORY :
New bill.

 FISCAL IMPLICATIONS :
None.

 EFFECTIVE DATE :
This act shall take effect immediately.

2009-S4362 (ACTIVE) - Bill Text download pdf

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

                                  4362

                       2009-2010 Regular Sessions

                            I N  S E N A T E

                             April 22, 2009
                               ___________

Introduced  by  Sen.  KRUGER -- read twice and ordered printed, and when
  printed to be committed 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
PRIOR  WRITTEN NOTICE UPON HIRING AND ONCE ANNUALLY TO ALL EMPLOYEES WHO
MAY BE AFFECTED, INFORMING THEM OF THE TYPES  OF  MONITORING  WHICH  MAY

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

S. 4362                             2

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.

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