Beginning May 7, 2022, all private-sector employers, regardless of size, must provide prior written notice of any electronic monitoring to employees upon hire. Further, employers must receive a written or electronic acknowledgment from the employees of receipt of the notice. Employers must also post the notice in a conspicuous place so that employees who are subject to electronic monitoring can readily review the notice.
This notice is required of every employer who monitors or intercepts telephone conversations or transmissions, emails, or internet access or usage. While we don’t yet have a template provided for this notice, the law provides:
“…an employee shall be advised that any and all telephone conversations or transmissions, electronic mail or transmissions, or internet access or usage by an employee by any electronic device or system, including but not limited to the use of a computer, telephone, wire, radio or electromagnetic, photoelectronic or photo-optical systems may be subject to monitoring at any and all times and by any lawful means.”
The new law will not apply to processes designated to manage the volume or type of incoming or outgoing email, voicemail, or internet usage; targeted to monitor or intercept any specific individual’s communications, or performed solely for purposes of system maintenance or protection.
While the new law does not specifically require notification in employers’ employee handbooks, a reference to electronic monitoring in an employer’s handbook and other relevant policies will be useful to notify employees that electronic monitoring is occurring and will likely bolster an employer’s defense that employees had adequate notice about monitoring.