Three Ways to Tell an Employee They Are Being Monitored

Three Notice Designs, Not One

New York, Connecticut and Delaware each answer the same policy question — whether an employer may watch electronic activity without saying so — with the same answer: monitoring is permitted, and disclosure is what the law regulates. None of the three conditions monitoring on employee agreement, and none limits what may be monitored once the disclosure obligation is met. The disagreements among them are about mechanics, and the mechanics are not interchangeable.

The three statutes differ on when the notice is owed, whether a posting suffices on its own, whether an acknowledgment is required, what conduct counts as monitoring, who collects a penalty, and how large it is. They also differ on a question the others do not raise at all: whether the state itself is bound.

Connecticut: The Posting Is the Notice

Connecticut's Sec. 31-48d, enacted by Public Act 98-142, is the oldest of the three and the only one whose text is reproduced by the enforcing agency on its own sample poster. The Connecticut Department of Labor's Wage and Workplace Standards Division publishes that poster with the statutory text printed on the reverse.

Subsection (b)(1) requires each employer who engages in any type of electronic monitoring to give prior written notice to all employees who may be affected, informing them of the types of monitoring which may occur. It then adds the sentence that defines the Connecticut approach: each employer shall post, in a conspicuous place readily available for viewing by its employees, a notice concerning the types of electronic monitoring the employer may engage in, and "[s]uch posting shall constitute such prior written notice."

Two features of the definitions in subsection (a) are worth stating precisely. "Employer" means any person, firm or corporation "including the state and any political subdivision of the state which has employees" — Connecticut binds public employers where the other two statutes exclude them. And "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, photoelectronic or photo-optical systems. The inclusion of "camera" is unique among the three, and the words "on an employer's premises" are a geographic limit the New York and Delaware sections do not contain.

The definition carves out two categories at the outset: collection of information for security purposes in common areas of the premises which are held out for use by the public, and collection which is prohibited under state or federal law.

Connecticut's Exception for Suspected Misconduct

Subsection (b)(2) is the only provision among the three statutes that permits monitoring to proceed without prior notice, and it is drafted as a two-part test. Where (A) an employer has reasonable grounds to believe that employees are engaged in conduct which (i) violates the law, (ii) violates the legal rights of the employer or the employer's employees, or (iii) creates a hostile workplace environment, and (B) electronic monitoring may produce evidence of this misconduct, the employer may conduct monitoring without giving prior written notice.

A separate provision addresses criminal process. Subsection (d) states that the section does not apply to a criminal investigation, and that information obtained in the course of a criminal investigation through the use of electronic monitoring may be used in a disciplinary proceeding against an employee.

New York: Notice on Hiring, Plus a Posting

New York added Civil Rights Law § 52-c by Senate Bill 2628 of 2021, under the heading "Employers engaged in electronic monitoring; prior notice required." The act takes effect on the one hundred eightieth day after becoming law.

Subdivision 2(a) applies to an 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 — a list the statute expands to include "the use of a computer, telephone, wire, radio, or electromagnetic, photoelectronic or photo-optical systems." Such an employer "shall give prior written notice upon hiring to all employees who are subject to electronic monitoring."

The New York design differs from Connecticut's in two respects that follow from that sentence. The notice is keyed to the moment of hiring rather than to the commencement of monitoring, and the posting does not stand in for it: the statute requires the written notice "in writing, in an electronic record, or in another electronic form and acknowledged by the employee either in writing or electronically," and then separately requires that each employer "also post the notice of electronic monitoring in a conspicuous place which is readily available for viewing by its employees who are subject to electronic monitoring." Connecticut requires a posting and treats it as sufficient; New York requires both, and requires an acknowledgment for one of them.

Subdivision 2(b) prescribes the substance. The employee is to be advised that any and all of the listed communications and usage "may be subject to monitoring at any and all times and by any lawful means." Subdivision 1 defines employer as any individual, corporation, partnership, firm, or association with a place of business in the state, and states that it "shall not include the state or any political subdivision of the state" — the opposite of Connecticut's inclusion.

Delaware: Daily Notice or a One-Time Acknowledgment

Delaware's 19 Del. C. § 705 is structured as a prohibition with alternative cures. Subsection (b) provides that no employer, nor any agent or representative of an employer, shall monitor or otherwise intercept any telephone conversation or transmission, electronic mail or transmission, or internet access or usage of or by a Delaware employee unless the employer either:

• Provides an electronic notice of such monitoring or intercepting policies or activities to the employee at least once during each day the employee accesses the employer-provided e-mail or Internet access services; or
• Has first given a one-time notice to the employee of such monitoring or intercepting activity or policies, in writing, in an electronic record, or in another electronic form, and acknowledged by the employee either in writing or electronically

The first branch has no counterpart in either of the other statutes: a recurring, per-day electronic notice that is satisfied at the point of access rather than at hiring or by a posting. The second branch resembles New York's acknowledged notice, without the accompanying posting requirement. Subsection (b) also states that the notice requirement does not apply to activities of any law-enforcement officer acting under a court order issued pursuant to Chapter 24 of Title 11. The definition of employer in subsection (a) includes "the State of Delaware or any agency or political subdivision thereof."

The Maintenance Exception, Written Twice

Two of the three statutes exclude automated handling of traffic in language that is very close to identical. Delaware's subsection (e) provides that the section does not apply to processes "that are designed to manage the type or volume of incoming or outgoing electronic 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."

New York's subdivision 4 states the same exception in the same three-part form, with the same requirement that the process not be targeted at a particular individual and be performed solely for computer system maintenance and/or protection. Connecticut has no equivalent clause; its exclusions operate instead through the definition of electronic monitoring in subsection (a), which removes public-area security collection and collection prohibited by law.

Penalties and Who Collects Them

New York and Connecticut share a penalty ladder. Under New York's subdivision 3, the attorney general may enforce the section, and an employer found in violation is subject to a maximum civil penalty of five hundred dollars for the first offense, one thousand dollars for the second, and three thousand dollars for the third and each subsequent offense. Connecticut's subsection (c) sets the identical maximums — five hundred, one thousand, and three thousand dollars — but assigns them to the Labor Commissioner, who may levy the penalty after a hearing conducted in accordance with sections 4-176e to 4-184 of the general statutes.

Delaware departs on both figures and forum. Subsection (c) provides a civil penalty of $100 for each violation, and states that a civil penalty claim "may be filed in any court of competent jurisdiction" rather than assigning collection to an agency. Subsection (d) adds that the section is not an exclusive remedy and does not limit or bar any person from pursuing other remedies available under any other state or federal statute or the common law, while providing that an employer's violation shall not be admitted into evidence as a defense to criminal liability.

None of the three sections states a private right of action in terms. Delaware's non-exclusivity clause preserves whatever other remedies exist without creating one, and the New York and Connecticut sections route enforcement to a named public official.

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