NYS Electronic Monitoring and NYC Pay Transparency Laws Go Into Effect in May

April 13, 2022

NYS Electronic Monitoring Law Goes Into Effect May 7, 2022

Beginning May 7, 2022, all employers with places of business in New York State who “engage[] in electronic monitoring” of their employees must provide written notice to their employees informing them of such monitoring immediately upon hiring. This new requirement comes as a result of a recent amendment to the New York Civil Rights Law, Senate Bill S2628, which the New York Governor signed into law on November 8, 2021 (the “Amendment”).

Pursuant to the Amendment, covered employers must notify employees who are subject to electronic monitoring as defined by the Amendment of the following:

“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 by any lawful means.”

Employees who are provided this notice upon hiring must acknowledge receipt “either in writing or electronically.”

Covered employers are also required to post the notice in a “conspicuous place which is readily available for viewing by its employees who are subject to electronic monitoring.” Many employers may already have an electronic monitoring notice and acknowledgment in their employee handbooks, but employers should ensure the handbook’s language complies with the new Amendment. Notably, a handbook notice alone does not meet the requirements of the new Amendment. To ensure compliance with the Amendment, employers must provide a written acknowledgment form to each employee for signature upon hire. As a further best practice, employers may also consider obtaining a written acknowledgment from existing employees.

The Amendment can be found here.

NYC Pay Transparency Law Goes Into Effect May 15, 2022

New York City has enacted a pay transparency law requiring minimum and maximum salaries to be listed in job postings, effective May 15, 2022. The salary range must represent the employer’s “good faith” belief of the amounts it would pay for the advertised job, promotion, and transfer. Under the new law, an employer’s failure to do so will be deemed an “unlawful discriminatory practice” under the New York City Human Rights Law. The law does not apply to employers with less than four employees (including independent contractors), nor to temporary positions listed by temporary staffing agencies. The New York City Council’s full description of the new law can be found here.

The New York City Commission on Human Rights has published a fact sheet with respect to the pay transparency law. The fact sheet provides, among other things, the following details:

  • An “advertisement” is a written description of an available job, promotion, or transfer opportunity that is publicized to a pool of potential applicants. The law does not prohibit employers from hiring without using an advertisement or require employers to create an advertisement in order to hire.
  • The term “salary” includes the base wage or rate of pay, regardless of the frequency of payment. For example, it would include an hourly wage of $15 per hour or an annual salary of $50,000 per year. However, “salary” does not include other forms of compensation, such as insurance, paid time off, 401(k)/pension contributions, severance pay, overtime pay, commissions, tips, bonuses, stock, etc.
  • This law applies to advertisements for positions that can or will be performed, in whole or in part, in New York City, whether from an office, in the field, or remotely from the employee’s home.

The fact sheet is available here.

Please contact a member of Herrick’s Employment Group with any questions.

Carol M. Goodman at +1 212 592 1465 or [email protected]
Meaghan Roe at +1 212 592 1632 or [email protected]
Silvia Stockman at +1 212 592 1583 or [email protected]

© 2022 Herrick, Feinstein LLP. This alert is provided by Herrick, Feinstein LLP to keep its clients and other interested parties informed of current legal developments that may affect or otherwise be of interest to them. The information is not intended as legal advice or legal opinion and should not be construed as such.