We got a question about implementing the new Section 52-c of the New York Civil Rights Law, which requires employers to notify employees if their workplace communications will be monitored.
New York Civil Rights Law Section 52-c, captioned "Employers engaged in electronic monitoring; prior notice required" went into effect on May 7, 2022.
As laws go, it is fairly short, so I have included the full text below this answer.
What does the law require? And do those requirements have any special impact and library and other cultural and educational institutions?
The law requires potentially 5 things:
First, the library/museum/historical society/archive/etc. needs to determine if they are considered an "employer" for purposes of this law.
In that regard, the law helpfully states: "For purposes of this section, employer means any individual, corporation, partnership, firm, or association with a place of business in the state. It shall not include the state or any political subdivision of the state."
This means that many institutions who may be a member of a regional library council--private educational institutions, museums, historical societies, association libraries, based in New York--are without question to be considered "employers" under this law.
For school district libraries and special district libraries, or confederated library systems, until there is strong evidence otherwise (for instance, a union contract, policy, or cooperation agreement expressly stating that the library employees are employees of the district or a participating municipality), it will be wise to consider it to apply.
For municipal libraries and other chartered institutions whose employees are paid and otherwise treated as municipal employees[1], following the municipality's policy on this makes sense...again, until we get firm guidance otherwise.
Second, the library/museum/historical society/archive/etc. needs to determine if they are "engaged in electronic monitoring", which is the status by which an "employer" (as defined) must comply.
This requires a bit of self-reflection on behalf of the employer. Looking to the law, the qualifying activities are:
monitoring or otherwise intercepting telephone conversations or transmissions, AND/OR
monitoring or otherwise intercepting electronic mail or transmissions, AND/OR
monitoring or otherwise intercepting internet access or usage of or by an employee
BY USING
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.
Whoa.
To truly analyze this, an employer should take a deep look at the way telephone, electronic mail, and Internet usage is monitored at the institution.
Examples of actions that would count as "monitoring" under this law are:
Examples of actions that would NOT count as "monitoring” under this law are:
(Notably, 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" do not count as "monitoring.”)
Third, employers who find they are engaging in "monitoring" should assess if the monitoring impacts only one category of employee, or if every employee may be subject to some type of monitoring. This determination should be made in writing, so the required next steps can be carefully documented as having been followed.
Fourth, if the institution is an "employer” under this law, and engages in any of the monitoring described above, it must implement a practice of giving "prior written notice, upon hiring" to all employees who are subject to electronic monitoring. This can be notice given only to a certain category of employees who are so subject, or it can be to every new employee just to be safe.
Here is a sample pre-hire notice that tracks the language of the law:
Per Section 52-c of the New York Civil Rights Law, prior to your hire, you are advised that per EMPLOYER NAME policy and in furtherance of its mission and legal compliance, any and all telephone conversations or transmissions, electronic mail or transmissions, or internet access or usage by an employee by any EMPLOYER NAME 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.
It can be delivered either in hard copy, or electronically, but...
Fifth, after giving the pre-hire notice is delivered, the employer must make sure it has been "acknowledged" by the employee (either in writing, or electronically).
Here is a sample acknowledgement that tracks the language of the law:
I acknowledge that prior to my hire, I was advised that any and all telephone conversations or transmissions, electronic mail or transmissions, or internet access or usage by an employee by electronic device or system, including but not limited to the use of a computer, telephone, wire, radio or electromagnetic, photoelectronic or photo-optical systems at EMPLOYER NAME may be subject to monitoring at any and all times and by any lawful means.
NAME:
SIGNATURE [OR METHOD OF ELECTRONIC ACKNOWLEDGEMENT]
Sixth, the employer must post the notice in a "conspicuous place" (a place where the other employee notices, such as workers comp coverage are posted, is good), so the employees who are subject to electronic monitoring can see it.
Here is a sample posting notice that tracks the language of the law:
Per Section 52-c of the New York Civil Rights Law, employees are advised that per EMPLOYER NAME policy and in furtherance of its mission and legal compliance, any and all telephone conversations or transmissions, electronic mail or transmissions, or internet access or usage by an employee by any EMPLOYER NAME 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.
It is interesting to note that unlike other mandatory employee notice laws, the new Section 52-c of the Civil Rights Law does not require specific inclusion in an employee handbook or personnel manual. This makes sense, however, since most hiring manuals are not provided until after the person has accepted the job, and this law specifically requires that notification be "prior to hire". So, while there is no harm in including it in that manual as well, it is important not to just rely on inclusion in an employee manual to meet the requirements of the pre-hire notice and acknowledgement.
And what about employers who currently assess their actions and determine that they are not currently engaging in any monitoring or interception that would trip the requirements of this law? Do they not have to make or post the notice?
Unfortunately, I have to urge caution. At any moment, a complaint could be received under a whistleblowing policy or a sexual harassment policy, that requires the employer to use "electronic means" to review computer records, internet use, and records in employee e-mail (and perhaps even recorded voicemail?). While I would argue that it should, the law makes no distinction between employers who routinely engage in such monitoring, and employers who may sporadically use that type of monitoring to address unusual circumstances.
Therefore, for employers whose employees regularly use the Internet and e-mail, it is wise to make this notification.
That said, there is no restriction on adding a caveat to the posted the notification language, such as:
Per Section 52-c of the New York Civil Rights Law, employees are advised that per EMPLOYER NAME policy and in furtherance of its mission and legal compliance, any and all telephone conversations or transmissions, electronic mail or transmissions, or internet access or usage by an employee by any EMPLOYER NAME 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. While we make this notification, employees are further notified that during the order ordinary course of business, routine and consistent monitoring is not conducted. However, because EMPLOYER NAME may need to monitor such resources as part of an investigation or under special circumstances, we are notifying the workforce of this possibility, as required by law.
Thank you for a timely and important question.
https://www.nysenate.gov/legislation/laws/CVR/52-C%2A2
SECTION 52-C*2
Employers engaged in electronic monitoring; prior notice required
Civil Rights (CVR) CHAPTER 6, ARTICLE 5
*§ 52-c. Employers engaged in electronic monitoring; prior notice
required. 1. For purposes of this section, employer means any
individual, corporation, partnership, firm, or association with a place
of business in the state. It shall not include the state or any
political subdivision of the state.
2. (a) Any 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, including but not limited to the use of a computer,
telephone, wire, radio, or electromagnetic, photoelectronic or
photo-optical systems, shall give prior written notice upon hiring to
all employees who are subject to electronic monitoring. The notice
required by this subdivision 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 the
notice of electronic monitoring in a conspicuous place which is readily
available for viewing by its employees who are subject to electronic
monitoring.
(b) For purposes of written notice required by paragraph (a) of this
subdivision, 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.
3. The attorney general may enforce the provisions of this section.
Any employer found to be in violation of this section shall be subject
to a maximum civil penalty of 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 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.
* NB There are 2 § 52-c's
[1] To be clear, even when this is the case, when it comes to public libraries, it is the library's board of trustees who controls hiring, compensation, evaluation, and other terms of employment. See Education Law 226(7).
[NOTE: We didn't get this as a submission to "Ask the Lawyer", but we wish we had...]
Our library board is considering a resolution to bar displays celebrating Pride Month. The ban focuses on, but is not limited to, displays in children's/YA areas. Is this a legal issue?
YES. Expressly barring library displays based on categories protected by law, such as sexual orientation and gender, is--among other things--a legal issue.
This is not to say a library can't pass a policy on library displays. A library could easily implement a policy that requires displays to be timely, that they be reflective of the needs of the community, and that they display an array of materials from different sources. Such a policy, done thoughtfully and with director and attorney input, could be perfectly appropriate, legal, and in line with the mission of a public library.
In addition, such a policy could address and provide established and well-thought-out procedures for the library to address:
But what such a policy could NOT do (without tripping legal concerns) is make blanket rules about display content based on categories that align with identities protected by law. [1]
Further, if such decisions are made in a vacuum, without policy (like an ad hoc board resolution), they run the risk of being both discriminatory and "arbitrary and capricious." Such a ban--especially coupled with the dialogue and community interaction that might precede and follow it--could set the stage for:
In addition, there are many local municipalities that have their own protections for certain protected categories, including sexual orientation and gender identity and expression. So there is a risk of implicating not just state and federal, but local law, as well.
Of course, such a ban is FAR MORE that a legal issue. But amidst everything else, it IS a legal concern. And while their primary duty is to serve the library's mission, public library trustees also have a fiduciary duty to guard against claims that the library has violated state, federal and local civil rights laws.
How would a library board walk back having taken such a position? Ideally, very quickly and decisively, with confidential legal advice from their local attorney[3]. This is because in and of itself, such a ban might not be enough to trigger legal action...rather like how just vodka isn't enough to make a martini. But who knows when the vermouth will show up?
That said, if a board is at this point (and especially if the library director and staff are watching, without being consulted[4]), even after serious consideration of a such a policy or directive, change is possible.
After all, each and every library trustee and employee in New York (and even their lawyers) can always learn more about the New York Human Rights Law,[5] federal civil rights law, and perhaps even the protections in their municipality.
And public libraries are there to enable learning by everybody.
Everybody.
[1] In New York, that includes: race, creed, color, national origin, sexual orientation, gender identity or expression, military status, sex, disability, marital status, or status as a victim of domestic violence.
[2] https://www.nysenate.gov/legislation/laws/EXC/296 This links brings the reader to a partial list of barred discriminatory actions. Here is an excerpt (in other words, there's more): " 2. (a) It shall be an unlawful discriminatory practice for any person, being the owner, lessee, proprietor, manager, superintendent, agent or employee of any place of public accommodation, resort or amusement,
because of the race, creed, color, national origin, sexual orientation, gender identity or expression, military status, sex, disability, marital status, or status as a victim of domestic violence, of any person, directly or indirectly, to refuse, withhold from or deny to such person any of the accommodations, advantages, facilities or privileges thereof, including the extension of credit, or, directly or indirectly, to publish, circulate, issue, display, post or mail any written or printed communication, notice or advertisement, to the effect that any of the accommodations, advantages, facilities and privileges of any such place shall be refused, withheld from or denied to any person on account of race, creed, color, national origin, sexual orientation, gender identity or expression, military status, sex, disability or marital status, or that the patronage or custom thereat of any person of or purporting to be of any particular race, creed, color, national origin, sexual orientation, gender identity or expression, military status, sex or marital status, or having a disability is unwelcome, objectionable or not acceptable, desired or solicited.
[3] And perhaps a check-in with their "directors and officers" insurance carrier.
[4] This type of issue is part of why the author consistently recommends trustees be trained on non-discrimination policies (including sexual harassment).
[5] https://dhr.ny.gov/new-york-state-human-rights-law
Tags: Board of Trustees, Discrimination, Ethics, Policy, Displays, First Amendment, Intellectual Freedom, New York Civil Rights Law
This is an issue that's come up in recent conversation. If an individual who no longer works at an institution finds that their picture is still being used by said institution, whether in promotional photos or on staff/faculty pages, does that individual have any legal recourse? It seems wrong for an institution to continue to use photos of faculty, staff, or even students who are no longer affiliated with the institution but it seems to promote the idea that they are. Sometimes it could be carelessness, other times it seems like there is an illusion of diversity being promoted. What could someone do if they find that their image/likeness is still being used by their former employer, for whatever reason?
This question needs to be answered on a sliding scale.
Here are three scenarios to show how the scale can slide:
Scenario 1: "Scrapbooking"
A museum makes robust use of social media to connect with its community. At different events, a staffer or two are expected to take lots of photos, including shots of staff and guest speakers interacting with the community. Members often comment how much they enjoy the images and connectivity.
Since the Museum got in on the ground floor of social media and the practice started on the Museum's website, some of the content is almost 3 decades years old ("born and aging digital"). At this point, some of the employees in the images have not only simply moved on--they've retired.
No written, signed permission to use the employees' images is obtained.
Scenario 2: "Image Crafting"
A library is working to show its commitment to diversity, equity, and inclusion. The employee in charge of the web site and social media culls through photos of employees and patrons to post selected images on static pages that refer to a DEI commitment; while other use of the website and social media is managed as usual, these pages remain unchanged as stand-alone statements.
No written, signed permission to use the employees' images is obtained.
Scenario 3: "Stone Cold Marketing"
An association library is creating a brochure to kick off a capital campaign to build a new library on a donated piece of property. The donated land is more centrally located in the library's area of service. To raise funds for the hoped-for building that will serve a new generation of library users, the library asks all the employees and their kids to attend a photo shoot on the new land. The idea is they will sit on blankets, reading, on the currently-empty lot, and the library's graphic designer will put a semi-transparent rendering of the future building over them, showing the library of the future.
No written, signed permission to use the employees' images (or their kids' images) is obtained.
In New York, the law is pretty straightforward on the unauthorized commercial use of living people; NY Civil Rights Law Section 50 "Right of privacy" says "a person, firm or corporation that uses for advertising purposes, or for the purposes of trade, the name, portrait or picture of any living person without having first obtained the written consent of such person, or if a minor of his or her parent or guardian, is guilty of a misdemeanor."
Recently, the law was expanded to restrict the commercial use of the image of deceased "personalities": NY Civil Rights Law Section 50-F 2. a. provides "Any person who uses a deceased personality's name, voice, signature, photograph, or likeness, in any manner, on or in products, merchandise, or goods, or for purposes of advertising or selling, or soliciting purchases of, products, merchandise, goods, or services, without prior consent from the person or persons specified in subdivision four of this section, shall be liable for any damages sustained by the person or persons injured as a result thereof."[1]
"Ask the Lawyer" has addressed this issue a bit before: see https://www.wnylrc.org/ask-the-lawyer/raqs/255 and https://www.wnylrc.org/ask-the-lawyer/raqs/49, but we haven't focused on solutions to the question posed by the member: If an individual who no longer works at an institution finds that their picture is still being used by said institution, whether in promotional photos or on staff/faculty pages, does that individual have any legal recourse?
This is where our scenarios come in.
If the use is what I've called "scrapbooking" in the first scenario--part of a collection documenting events as they unfolded, and not featured or linked in a way that advertises the institution or asks for money--the law does not have much recourse. That said, a former employee can always ask for an image to be removed as an act of courtesy, and if there is a compelling reason (safety, emotional well-being, not wanting to be affiliated with the institution any more) an attorney could help the person isolate and make a convincing argument for removal.
As the scale continues to slide, if the use is what I've called "image crafting" (the use referenced by the member in the question), if written permission was not granted, there may be grounds for demanding removal under the law. A current or former employee who feels strongly about this should consider working with a lawyer, since the first request should accurately set out the basis for the requested removal.
On the final end of the scale, when the use is clearly for "advertising purposes, or for the purposes of trade" (like a posting soliciting a capital donation), written permission should have been obtained, and a former or current employee--unless their job description includes serving as a model or posing for published pictures--has a strong basis to demand removal under the law.
What can a cultural institution do to avoid the risk of unauthorized commercial use of an employee's image? A few things:
First, unless it is part of the employee's job description, do not require use of the employee’s image on print publications and social media. If the institution has determined that, for the sake of public relations and service, all public-facing employees will have their picture on the website, it should ensure that due attention to safety and privacy is factored into the requirement.[2]
Second, even when an employee seems "okay" with being featured in a publication (print or online), it is good to get written permission. While not all uses will qualify as "commercial" and thus risk violation of the law, it shows respect and proper attention to employee agency and safety.
Third, if feasible, consider a default position that every employee, unless it is in their job description, has "opted out" for use of employee images on institutional publications. Then ask who would want to be featured. For example: "To respect employee privacy, the library does not intentionally use the name and images of employees except to the extent they are listed on the website and in published board materials. If you would like to be featured in library social media and publications, please alert the Director, so we can obtain a written image release. This is not a requirement!"
Fourth, if your library or other cultural institution needs to rely on the personality and persona of an employee to the point where use of their name and image in association with the library is part of their job, consider putting that in their job description. For example, "The [insert title] position is a community-facing position and in addition to routine interaction with the public, will be required to interface with the public via materials published by the [library] from time to time, including use of their name, signature, and recorded images of their likeness and voice."
And fifth, when in doubt, get an image release.
An image release can come in many forms; to be on the safe side, an image release should be custom-written for your institution, and the use it plans to make of authorized images.
That said, here is a sample:
Image Release
NAME, who is at least 18 years of age, consents to the use of their image, name, and likeness, as governed by New York Civil Rights Law 50 for purposes of informing the public about events, opportunities, and initiatives of the XYZ Library, including fundraising initiatives. As an employee, I understand that such consent is not a requirement of my position, and I may revoke this consent at any time by sending a written request to make no further use of my image under this Image Release. I understand that "revoking consent" means no further use will be made of my image, but that past use will not be removed. Unless revoked by me personally, this release shall be binding on my heirs and cover the institution's use of my "right of personality" as covered by New York Civil Rights Law 50-F.
DATE:______________
SIGNATURE:______________________
WITNESS:____________________________
Records retention period of this release: PERMANENT.
A well-written release can cover you whether you are "scrapbooking", "image crafting", or engaging in "stone cold marketing."
Thank you for a thoughtful question!
[1] I won't list them all here, but there are many exceptions to this law for use by artists, journalists, etc. If you are just learning about Civil Rights Law 50-F in this RAQ, please don't let it stifle your archive, art, or journalism! You can find the list of exceptions here: https://www.nysenate.gov/legislation/laws/CVR/50-F.
[2] I could write a whole chapter on this consideration, but we'll leave it there for now.
Tags: Employee Rights, Ethics, Image Rights, Templates, New York Civil Rights Law
