Can a non-governmental employer in the State of New York lawfully make a video recording of its employees in the workplace without the employees’ knowledge?  The short answer is that a private employer in New York lawfully may engage in secret, video-only surveillance of its employees in certain areas of the workplace, unless the employer does so for impermissible reasons.

Employers in New York State are prohibited from causing a video recording to be made of employees in a restroom, locker room, or room designated by an employer for employees to change their clothes, unless authorized by court order.  N.Y. Labor Law § 203-c(1).  Consequently, absent a court order, an employer in New York should never install a surveillance camera in any of the above-mentioned areas in the workplace.

Further, section 250.05 of the New York Penal Law, captioned “Eavesdropping,” renders it a class E felony for any person, other than a law enforcement officer acting under an eavesdropping warrant or a video surveillance warrant issued by a court, to engage in, among other forms of surveillance, “mechanical overhearing of a conversation.”   The same statute defines ” ‘mechanical overhearing of a conversation’ ” as “the intentional overhearing or recording of a conversation or discussion, without the consent of at least one party thereto, by a person not present thereat, by means of any instrument, device or equipment.”  N.Y. Penal Law § 250.00.

Therefore, it is a felony for a business in New York surreptitiously to subject its employees, in the workplace, to any video surveillance which contains an audio component.  It follows that, to avoid criminal liability, companies in New York which carry out video surveillance of their employees in the workplace must ensure that the video cameras will not capture the human voice.

Provided that the surveillance cameras are not located in a restroom, locker room, or room designated by the employer for employees to change their clothes, a non-governmental employer’s carrying out of secret, video-only surveillance of employees in the workplace in New York is lawful, unless the employer videotapes its employees so as to retaliate against them for engaging in protected activity.

Thus, in Clark v. Elam Sand & Gravel, Inc., 4 Misc. 3d 294, 777 N.Y.S.2d 624 (N.Y. Sup. Ct. Ontario County 2004), the Supreme Court of the State of New York, Ontario County, dismissing, for failure to state a cause of action, the plaintiff worker’s amended complaint, held that the defendant employer’s and the employer’s president’s “install[ation] and maint[enance] [of] video and telephone surveillance in the workplace without the [plaintiff] employee’s knowledge” did not give rise to a claim of either intentional infliction of emotional distress or negligent infliction of emotional distress.   Clark, 4 Misc. 3d at 295-297.  The Clark Court explained: “Although [the plaintiff worker] alleges that [the employer and its president] owed a duty to provide privacy in the workplace to [the worker], there simply is no such right in New York.”  Id. at 296.

By contrast, in Mendez v. Starwood Hotels & Resorts Worldwide, Inc., 746 F. Supp.2d 575 (S.D.N.Y. 2010), the jury, after a multi-week trial, found the defendant casino liable for retaliating against the plaintiff employee, for the employee’s numerous complaints about unlawful discrimination and harassment, by “installing a hidden camera above [the employee's] work station, where it remained for eight days before co-workers found and disabled it.”  Mendez, 746 F. Supp.2d at 580, 592.  The U.S. District Court for the Southern District of New York, denying the casino’s motion for judgment in the casino’s favor notwithstanding the jury verdict, held that “ surveillance can . . . be deemed an adverse employment action” under Title VII and the New York City Human Rights Law, and “reject[ed]” the casino’s contention that, as a matter of law, “the installation of a hidden surveillance camera to surveil an employee who has complained of discrimination can never be retaliatory.”   Id. at 596-597.

If your company needs assistance or guidance on a labor or employment law issue and your company is located in the New York City area, call Attorney David S. Rich at (212) 209-3972.

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On February 26, 2014, the New York City Council, by a vote of 46 to 5, passed a bill, Int. No. 1-A-2014 (the “Bill”), amending the New York City Earned Sick Time Act to provide that effective April 1, 2014, among other revisions, employers in New York City which employ five to 14 employees must give each employee one hour of paid sick time for every 30 hours worked, up to five days per calendar year.  (Employers in New York City with fewer than 15 employees were outside the scope of the Earned Sick Time Act as originally enacted.)  Newly elected New York City Mayor Bill de Blasio has promised to sign, into law, the Council’s Bill amending the Earned Sick Time Act.

The Earned Sick Time Act, As Initially Enacted

By way of background, in June 2013, the New York City Council enacted the Earned Sick Time Act, Local Law 46 of 2013 (the “New York City Earned Sick Time Act,” the “Earned Sick Time Act,” the “Act,” or the “NYCESTA”).  Effective April 1, 2014, and if certain economic benchmarks are met, the Earned Sick Time Act, as initially enacted, required employers in New York City which employ 20 or more employees to give each employee one hour of paid sick time for every 30 hours worked, up to five days per calendar year.  So, too, effective October 1, 2015, and if the same economic benchmarks are met, the Act, as originally enacted, compelled businesses in New York City which employ 15 to 19 employees to give each employee one hour of paid sick time for every 30 hours worked, up to five days per calendar year.

The Newly Passed Bill’s Amendments To The Earned Sick Time Act

The changes which the February 26, 2014 Bill makes to the New York City Earned Sick Time Act include, but are not limited to, the following:

  • The Bill lowers, from 15 to five, the minimum number of employees whom an employer must employ to be subject to the NYCESTA’s paid sick time requirements.  Mayor De Blasio states that the Bill’s amendments to the NYCESTA will extend paid sick leave to 500,000 workers who were not covered by the NYCESTA as initially enacted.
  • The Council has eliminated the exemption which the Earned Sick Time Act formerly provided to employers in the manufacturing industry.
  • The Act will take effect for all employers on April 1, 2014 — less than a month from now.   The Bill gets rid of the requirement that certain economic benchmarks be met before the NYCESTA takes effect.  Further, businesses in New York City which employ 15 to 19 workers must comply with the NYCESTA beginning April 1, 2014, rather than (as under the original Act) beginning October 1, 2015.
  • The Bill undertakes to speed up the administrative proceedings which the Earned Sick Time Act authorizes the New York City Department of Consumer Affairs (the “Department of Consumer Affairs” or the “NYCDCA”) to prosecute against employers which violate the Act.  Specifically, the Bill requires, within 30 days after any person files a complaint with the Department of Consumer Affairs alleging that an employer has violated the NYCESTA, that the employer provide the NYCDCA with a written response and with any other information that the NYCDCA requests.
  • The Council has lengthened, from 270 days to two years, the period after a person knew or should have known of a business’s violation of the NYCESTA in which the person may file an administrative complaint with the Department of Consumer Affairs.
  • The Bill extends, from two years to three years, the period of time for which employers must retain records documenting the employers’ compliance with the Earned Sick Time Act.

Take-Aways for Employers

By April 1, 2014, employers in New York City must modify their policies regarding absence because of illness to conform to the Earned Sick Time Act.

Further, beginning on April 1, 2014, employers in New York City must provide to each new employee, at the commencement of employment, written notice of the employee’s right to sick time under the NYCESTA, including the accrual and use of sick time, the calendar year of the employer, and the right to be free from retaliation and to bring a complaint to the Department of Consumer Affairs.  N.Y.C. Admin. Code § 20-919.  The written notice must be in English and in the primary language spoken by that employee, provided that the NYCDCA has made available a translation of the notice in that language.  Id. § 20-919.  Also beginning April 1, each employer in New York City must conspicuously post such written notice at the employer’s place of business in an area accessible to all employees.  Id.

The Department of Consumer Affairs is required to, but to date has not, made available on its website, for use by employers in New York City, model, written notices of workers’ rights under the Earned Sick Time Act.  The NYCDCA’s failure so far to make available model notices does not relieve employers of their obligations, beginning on April 1, 2014, to distribute and post such notices.

If your company needs assistance or guidance on a labor or employment law issue and your company is located in the New York City area, call Attorney David S. Rich at (212) 209-3972.

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May My Business In New York Lawfully Fire An Employee Who Is Out On Short Term Disability?

March 4, 2014

As this author has previously explained, most workers in New York State are eligible for temporary cash benefits, known as short term disability benefits (“STD benefits”), when they are disabled by injury or sickness that is not work-related.  See N.Y. Workers’ Comp. Law § 201(9)(A)(defining ” ‘Disability’ “).  In particular, most employees in New York […]

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Jersey City, New Jersey Passes Law Mandating Paid Sick Leave For Workers

February 11, 2014

On October 21, 2013, Jersey City Mayor Steve Fulop signed into law the Jersey City Earned Sick Time Ordinance, Ordinance 13.097 (the “Jersey City Earned Sick Time Ordinance,” the “Earned Sick Time Ordinance,” the “Ordinance,” or the “JCESTO”).  Effective January 24, 2014, the Earned Sick Time Ordinance requires employers in Jersey City, New Jersey which […]

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Must My Company In New Jersey Offer Or Provide Health Insurance To Its Employees?

January 21, 2014

Whether a business in New Jersey must offer or provide health insurance to its employees depends on the number of workers that the business employs.  In general: Employers in New Jersey with 50 or more employees must provide “minimum essential” health care coverage for employees who work 30 or more hours per week or must […]

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New Jersey Increases The Minimum Wage To $8.25 Per Hour; Further, The State Minimum Wage Will Increase Annually Based On Inflation

January 6, 2014

On November 5, 2013, New Jersey residents voted, by a tally of 61% to 38%, to approve an amendment to the New Jersey State Constitution (the “New Jersey Constitution” or the “State Constitution”) increasing the State’s minimum wage from $7.25 per hour to $8.25 per hour.  The amendment, which took effect on January 1, 2014, […]

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An Employee Of My Company In New Jersey Took A Whole Lot Of Leave Last Year. Is He Even Eligible Now For New Jersey Family Leave Act Leave?

November 25, 2013

Because it is unsettled who — the employer or, instead, the employee — bears the burden of showing that an employee has worked the 1,000 base hours, during the immediately preceding twelve-month period, that render the employee eligible for leave under the New Jersey Family Leave Act, N.J.S.A. §§ 34:11B-1- 34:11B-16 (the “NJFLA”), employers in […]

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New York City Enacts Statute Requiring Employers To Provide Reasonable Accommodation For Pregnancy And Childbirth

October 29, 2013

Effective January 30, 2014, a new statute in New York City requires employers to provide reasonable accommodation to the needs of an employee for her pregnancy, childbirth, or related medical condition.  It is an affirmative defense “that the person aggrieved by the alleged discriminatory practice could not, with reasonable accommodation, satisfy the essential requisites of […]

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For Purposes Of The Usury Laws Of New York, What Fees Or Charges Are Included In The Interest Rate Of A Loan?

October 7, 2013

In New York State, charging interest of more than 16% per year is civil usury.  Further, in New York, charging, taking, or receiving interest of 25% or more is criminal usury.  Lenders and borrowers frequently ask me what fees or charges count toward a loan’s interest rate for purposes of New York’s usury laws.  The […]

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New Law Prohibits Employers In New Jersey From Forcing Workers To Provide User Names Or Passwords For Their Social Media Accounts

September 23, 2013

On August 28, 2013, New Jersey Governor Chris Christie signed into law a statute, Pub. L. 2013, ch. 155, prohibiting employers in New Jersey from requiring or requesting that employees or applicants for employment provide or disclose any user name or password for their social media accounts, such as Facebook or Twitter accounts. The new […]

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