On September 14, 2023, Governor Hochul signed into law two pieces of legislation that effectively amended the New York State Labor Law (“NYLL”). These new laws will impact employer conduct with respect to accessing an employee’s personal electronic accounts, as well as adding additional responsibilities due to an employee at the time of separation.
The first new law (S. 2518/A. 836) – which goes into effect December 4, 2023 – amends the NYLL by adding provisions to Section 201 of the statute. The new provisions now render it unlawful for an employer to: request, require, or coerce an employee or applicant to disclose any username, password, or other means for accessing a personal account through specified electronic communications devices; access an employee/applicant's personal account in their presence; or reproduce, in any manner, photographs, video, or other information contained within a personal account obtained by prohibited means. The law also makes it unlawful to retaliate against an employee/applicant that refuses to provide personal electronic account information.
The definitions applied in this law are broad. For example, “personal account” is defined as “an account or profile on an electronic medium where users may create, share, and view user-generated content, including uploading or downloading videos or still photographs, blogs, video blogs, podcasts, instant messages, or internet website profiles or locations that is used by an employee or an applicant exclusively for personal purposes.” Essentially, requests for information to access an employee’s personal account are now off-limits in most circumstances.
Under the statute, “access” does not include an employee/applicant’s voluntary addition of an employer (or their representative) to their list of contacts on an electronic account. Employers may also require employees to disclose any username, password, or other means for accessing nonpersonal accounts that provide access to: the employer’s internal computer or information systems; accounts provided by the employer that are used for business purposes (if the employee was provided prior notice of the employer's right to request such information); accounts known by an employer to be used for business purposes; an electronic communications device paid for in whole or in part by the employer (if where the provision of or payment for such device was conditioned on the employer’s right to access and prior notice was given and agreed to by the employee); or that are required in complying with a Court Order.
Nothing in this new law prohibits or otherwise restricts an employer from viewing, accessing, or utilizing information about an employee/applicant that can be obtained without any required access information, that is available in the public domain, or to photographs, video, messages, or other information that is voluntarily shared by an employee, client, or other third party wherein otherwise prohibited access was voluntarily given.
The second new law (S. 4878-A /A. 398-A) also amends the NYLL by adding provisions to Section 590 of the statute. Employers making contributions to the state’s unemployment fund will now be required to provide employees with notice at the time of a permanent or temporary separation, reduction in hours, or “any other interruption of continued employment,” that includes: (1) the employer's name and registration number; (2) the address of the employer; and (3) “such other information as is required by the commissioner,” for example the dates of termination and associated cancellation of employee benefits as required by NYLL 195. This law will take effect on November 14, 2023.
If you have any questions regarding this article, please contact the Underberg & Kessler attorney who regularly handles your legal matters, or Ryan T. Biesenbach at (585) 258-2865 or rbiesenbach@underbergkessler.com.