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S07623 Summary:

BILL NOS07623B
 
SAME ASNo Same As
 
SPONSORHOYLMAN-SIGAL
 
COSPNSR
 
MLTSPNSR
 
Add Art 36 1010 - 1017, Lab L; ren 52-c to be 52-e, amd 52-e, Civ Rts L Rts L
 
Restricts the use by an employer or an employment agency of electronic monitoring or an automated employment decision tool to screen a candidate or employee for an employment decision unless such tool has been the subject of an impact assessment within the last year; requires notice to employment candidates of the use of such tools; provides remedies; makes a conforming change to the civil rights law.
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S07623 Text:



 
                STATE OF NEW YORK
        ________________________________________________________________________
 
                                         7623--B
 
                               2023-2024 Regular Sessions
 
                    IN SENATE
 
                                     August 4, 2023
                                       ___________
 
        Introduced  by Sen. HOYLMAN-SIGAL -- read twice and ordered printed, and
          when printed to be committed to the Committee on  Rules  --  committee
          discharged, bill amended, ordered reprinted as amended and recommitted
          to  said committee -- recommitted to the Committee on Labor in accord-
          ance with Senate Rule 6, sec. 8 -- committee discharged, bill amended,
          ordered reprinted as amended and recommitted to said committee
 
        AN ACT to amend the labor law, in relation to  restricting  the  use  of
          electronic  monitoring and automated employment decision tools; and to
          amend the civil rights law, in relation to making a conforming change
 
          The People of the State of New York, represented in Senate and  Assem-
        bly, do enact as follows:
 
     1    Section 1. The labor law is amended by adding a new article 36 to read
     2  as follows:
     3                                 ARTICLE 36
     4                   BOSSWARE AND OPPRESSIVE TECHNOLOGY ACT
     5  Section 1010. Definitions.
     6          1011. Electronic monitoring tools.
     7          1012. Automated employment decision tools.
     8          1013. Data access and accuracy.
     9          1014. Retaliation prohibited.
    10          1015. Civil liability.
    11          1016. Violations.
    12          1017. Powers of the commissioner.
    13    § 1010. Definitions.  For  the purposes of this section, the following
    14  terms have the following meanings:
    15    1. "Aggregated employee data" means employee data that an employer has
    16  combined, or collected together, in a summary or other form so that  the
    17  employee data cannot be identified with any specific employee.
    18    2.  "Automated employment decision tool" means any computational proc-
    19  ess, automated system, or algorithm utilizing machine learning,  statis-
    20  tical  modeling,  data  analytics,  artificial  intelligence, or similar

         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD11940-11-4

        S. 7623--B                          2
 
     1  methods that issues an output, including a score, classification,  rank-
     2  ing, or recommendation, that is used to assist or replace human decision
     3  making  on  employment decisions that impact natural persons. "Automated
     4  employment  decision  tool" does not include a tool that does not assist
     5  or replace employment decision processes and that  does  not  materially
     6  impact  natural  persons,  including,  but  not limited to, a junk email
     7  filter, firewall, antivirus software, calculator, spreadsheet, database,
     8  data set, or other compilation of data.
     9    3. "Candidate" means any natural person or their authorized  represen-
    10  tative  seeking employment through an application, or who is screened or
    11  evaluated for recruitment, for a position of employment  by  a  business
    12  operating in the state.
    13    4.  "Continuous  incremental  time-tracking  tool"  means  any system,
    14  application or instrument that  continuously  measures,  records  and/or
    15  tallies  increments  of time within a day during which an employee is or
    16  is not doing a particular activity or set of activities.
    17    5. "Electronic monitoring tool"  means  any  system,  application,  or
    18  instrument  that  facilitates  the  collection of data concerning worker
    19  activities or communications by any means other than direct  observation
    20  by a natural person, including but not limited to the use of a computer,
    21  telephone,  wire,  radio,  camera,  electromagnetic, photoelectronic, or
    22  photo-optical system.
    23    6.  "Egregious  misconduct"  means  deliberate  or  grossly  negligent
    24  conduct  that  endangers  the  safety  or  well-being of the individual,
    25  co-workers, customers, or other persons, or that causes  serious  damage
    26  to  the employer's or customers' property or business interests, includ-
    27  ing discrimination against or harassment of  co-workers,  customers,  or
    28  other persons or violations of the law.
    29    7.  "Employer" means any person who directly or indirectly, or through
    30  an agent or any other person, employs  or  exercises  control  over  the
    31  wages,  benefits,  other compensation, hours, working conditions, access
    32  to work or job opportunities, or other terms or  conditions  of  employ-
    33  ment,  of  any  worker,  including the state, county, town, city, school
    34  district, public authority or  other  governmental  subdivision  of  any
    35  kind.  "Employer" includes any of the employer's agents, contractors, or
    36  subcontractors.
    37    8.  "Employee"  means any natural person or their authorized represen-
    38  tative acting for, employed by, or a person classified as an independent
    39  contractor providing service to, or through, an  employer  operating  in
    40  the state.  An employee shall be deemed to be operating in the state for
    41  purposes  of  deeming  an  employee to be covered by this article if the
    42  employee works at least part time at a location  in  the  state,  or  if
    43  fully  remote, the employee is associated with an office in the state or
    44  supervised by a person who works at least part time at a location in the
    45  state. Employee can mean a former employee.
    46    9. "Employee data" means any information that identifies, relates  to,
    47  describes,  is  reasonably  capable  of  being associated with, or could
    48  reasonably be linked, directly or indirectly, with a particular  employ-
    49  ee,  regardless  of  how  the  information  is  collected,  inferred, or
    50  obtained.  Data includes, but is not limited to, the following:
    51    (a) personal identity information, including  the  individual's  name,
    52  contact  information, government-issued identification number, financial
    53  information, criminal background, or employment history;
    54    (b) biometric information, including the  individual's  physiological,
    55  biological,  or  behavioral  characteristics, including the individual's

        S. 7623--B                          3
 
     1  deoxyribonucleic acid (DNA), that can be used, singly or in  combination
     2  with other data, to establish individual identity;
     3    (c)  health,  medical,  lifestyle, and wellness information, including
     4  the individual's medical history, physical or mental condition, diet  or
     5  physical  activity  patterns, heart rate, medical treatment or diagnosis
     6  by a health care professional, health insurance policy number, subscrib-
     7  er identification number, or other unique identifier  used  to  identify
     8  the individual; and
     9    (d) any data related to workplace activities, including the following:
    10    (i) human resources information, including the contents of an individ-
    11  ual's personnel file or performance evaluations;
    12    (ii)  work process information, such as data relating to an individual
    13  employee's performance, including but not limited to quantities of tasks
    14  performed, quantities of items or materials handled or  produced,  rates
    15  or  speeds  of  tasks  performed,  measurements  or  metrics of employee
    16  performance in relation to a quota, and time categorized  as  performing
    17  tasks or not performing tasks;
    18    (iii)  data  that  captures workplace communications and interactions,
    19  including emails, texts, internal message boards,  and  customer  inter-
    20  action and ratings;
    21    (iv)  device  usage  and  data,  including calls placed or geolocation
    22  information;
    23    (v) audio or video data or other information collected  from  sensors,
    24  including  movement  tracking,  thermal  sensors, voiceprints, or facial
    25  recognition, emotion, and gait recognition;
    26    (vi) inputs to or outputs generated by an automated  employment  deci-
    27  sion tool that are linked to the individual;
    28    (vii)  data  collected  through  electronic  monitoring  or continuous
    29  incremental time-tracking tools; and
    30    (viii) data collected or generated on workers to mitigate  the  spread
    31  of  infectious  diseases,  including  COVID-19, or to comply with public
    32  health measures.
    33    10. "Employment decision" means any decision made by the employer that
    34  affects wages,  benefits,  other  compensation,  hours,  work  schedule,
    35  performance  evaluation,  hiring, selecting for recruitment, discipline,
    36  promotion, termination, job content, assignment of work, access to  work
    37  opportunities,  productivity  requirements, workplace health and safety,
    38  and other terms or conditions of employment. For persons  classified  as
    39  independent contractors or for candidates for employment, this means the
    40  equivalent  of these decisions based on their contract with or relation-
    41  ship to the employer.
    42    11. "Impact assessment" means an impartial evaluation by an  independ-
    43  ent auditor that complies with section one thousand twelve of this arti-
    44  cle.
    45    12.  "Independent  auditor"  means a person or entity that conducts an
    46  impact assessment of an automated employment decision tool in  a  manner
    47  that exercises objective and impartial judgment on all issues within the
    48  scope  of  such evaluation or assessment. A person is not an independent
    49  auditor of an automated employment decision tool if they currently or at
    50  any point in the five years preceding the impact assessment:
    51    (a) are or were involved in using, developing, offering, licensing, or
    52  deploying the automated employment decision tool;
    53    (b) have or had an employment relationship with a developer or deploy-
    54  er that uses, offers, or  licenses  the  automated  employment  decision
    55  tool; or

        S. 7623--B                          4
 
     1    (c)  have  or  had  a direct financial interest or a material indirect
     2  financial interest in a developer or  deployer  that  uses,  offers,  or
     3  licenses the automated employment decision tool.
     4    13.  "Meaningful  human oversight" means a process that includes, at a
     5  minimum:
     6    (a) the designation of an internal reviewer with sufficient  expertise
     7  in  the  operation  of  automated  employment decision tools, sufficient
     8  familiarity with the results of the most recent impact assessment of the
     9  employer's tool, and sufficient understanding  of  the  outputs  of  the
    10  employer's  tool to identify potential errors, discrepancies, or inaccu-
    11  racies produced by the tool;
    12    (b) that sufficient authority and discretion be granted to the  desig-
    13  nated internal reviewer to dispute, rerun, or recommend the rejection of
    14  an output suspected to be invalid, inaccurate, or discriminatory; and
    15    (c)  that  the designated internal reviewer has the time and resources
    16  available to review and evaluate the  tool  output  in  accordance  with
    17  paragraph (b) of this subdivision.
    18    14. "Periodic assessment of worker performance" means assessing worker
    19  performance  over  the  course of units of time equal to or greater than
    20  one calendar day.
    21    15. "Protected class" means a class enumerated in section two  hundred
    22  ninety-six of the executive law.
    23    16.  "Vendor"  means  any  person or entity who sells, distributes, or
    24  develops for sale an automated employment decision tool to be used in an
    25  employment decision made by an employer in the state.  "Vendor" includes
    26  any of the vendor's agents, contractors, or subcontractors.
    27    § 1011. Electronic monitoring tools. 1. (a) It shall be  unlawful  for
    28  an  employer  to  use  an electronic monitoring tool to collect employee
    29  data unless:
    30    (i) the electronic monitoring tool is primarily used to accomplish any
    31  of the following purposes:
    32    (A) allowing a worker to accomplish an essential job function;
    33    (B) ensuring the quality of goods and services;
    34    (C) periodic assessment of worker performance;
    35    (D) ensuring compliance with  employment,  labor,  or  other  relevant
    36  laws;
    37    (E)  protecting  the  health,  safety,  or security of workers, or the
    38  security of the employer's facilities or computer networks;
    39    (F) administering wages and benefits; or
    40    (G) additional purposes to enable business operations as determined by
    41  the department;
    42    (ii) the specific type  of  electronic  monitoring  tool  is  strictly
    43  necessary  to accomplish the purpose, exclusively used to accomplish the
    44  purpose, and is the least invasive means  to  the  employee  that  could
    45  reasonably be used to accomplish the purpose; and
    46    (iii)  the  specific  form  of electronic monitoring is limited to the
    47  smallest number of workers, collects the least amount  of  data  and  is
    48  collected  no  more  frequently  than  is  necessary  to  accomplish the
    49  purpose, and the data collected is deleted once  the  purpose  has  been
    50  achieved.
    51    (b)  Any  employer  that uses an electronic monitoring tool shall give
    52  prior written notice to all candidates and employees  subject  to  elec-
    53  tronic  monitoring  and post said notice in a conspicuous place which is
    54  readily available for viewing by candidates and employees,  pursuant  to
    55  subdivision  two  of  section  fifty-two-e of the civil rights law. Such
    56  notice shall include, at a minimum, the following:

        S. 7623--B                          5
 
     1    (i) a description of the purpose for which the  electronic  monitoring
     2  tool  will be used, as specified in subparagraph (i) of paragraph (a) of
     3  this subdivision;
     4    (ii)  a description of the specific employee data to be collected, and
     5  the activities, locations, communications, and job roles  that  will  be
     6  electronically monitored by the tool;
     7    (iii) a description of the dates, times, and frequency that electronic
     8  monitoring will occur;
     9    (iv)  whether  and  how  any employee data collected by the electronic
    10  monitoring tool will be used as an  input  in  an  automated  employment
    11  decision tool;
    12    (v)  whether  and  how  any  employee data collected by the electronic
    13  monitoring tool will alone or in conjunction with an  automated  employ-
    14  ment decision tool be used to make an employment decision by the employ-
    15  er or employment agency;
    16    (vi)  whether any employee data collected by the electronic monitoring
    17  tool will be used to assess employees' productivity  performance  or  to
    18  set productivity standards, and if so, how;
    19    (vii)  a description of where any employee data collected by the elec-
    20  tronic monitoring tool will be stored and the length of time it will  be
    21  retained; and
    22    (viii) an explanation for how the specific electronic monitoring prac-
    23  tice  is the least invasive means available to accomplish the monitoring
    24  purpose.
    25    (c) An employer shall establish,  maintain,  and  preserve  for  three
    26  years  contemporaneous, true, and accurate records of data collected via
    27  an electronic monitoring tool to  ensure  compliance  with  employee  or
    28  commissioner  requests for data. The employer shall destroy any employee
    29  data collected via an electronic monitoring tool no later  than  thirty-
    30  seven  months  after collection unless the employee has provided written
    31  and informed consent to the retention of their data by the employer.
    32    (d) Notice of the specific form of electronic monitoring shall:
    33    (i) be written in clear and plain language;
    34    (ii) be provided to each employee, in the language identified by  each
    35  employee as the primary language of such employee, at the time of hiring
    36  and at least annually thereafter;
    37    (iii)  be posted in a clear and conspicuous location in English and in
    38  any other language that the employer regularly uses to communicate  with
    39  employees;
    40    (iv) be made available in formats that are accessible to employees who
    41  are blind or have other disabilities;
    42    (v)  provide  the  worker  with actual notice of electronic monitoring
    43  activities. A notice that states electronic monitoring "may" take  place
    44  or  that  the  employer  "reserves  the  right"  to monitor shall not be
    45  considered actual notice of electronic monitoring activities; and
    46    (vi) be otherwise presented in a manner that ensures the notice clear-
    47  ly and effectively communicates the required information to employees.
    48    (e) (i) An employer who engages in random or periodic electronic moni-
    49  toring of employees shall inform the affected employees of the  specific
    50  events which are being monitored at the time the monitoring takes place.
    51  Notice shall be clear and conspicuous.
    52    (ii)  Notice  of random or periodic electronic monitoring may be given
    53  after electronic monitoring has occurred only if necessary  to  preserve
    54  the  integrity  of  an  investigation of illegal activity or protect the
    55  immediate safety of employees, customers, or the public.

        S. 7623--B                          6
 
     1    2. (a) Notwithstanding the allowable purposes for electronic  monitor-
     2  ing  described  in  paragraph (a) of subdivision one of this section, an
     3  employer shall not:
     4    (i) use an electronic monitoring tool in such a manner that results in
     5  a  violation  of labor, employment, civil rights, or human rights law or
     6  any other law of this state;
     7    (ii) use an electronic monitoring tool or data collected via an  elec-
     8  tronic  monitoring  tool  in  such  a  manner as to threaten the health,
     9  welfare, safety, or legal rights of employees or the general public;
    10    (iii) use an electronic monitoring tool to monitor employees  who  are
    11  off-duty and not performing work-related tasks;
    12    (iv)  use an electronic monitoring tool in order to obtain information
    13  about an employee's health, protected-class status, or membership in any
    14  group protected from employment discrimination under section two hundred
    15  ninety-six of the executive law or any other applicable law;
    16    (v) use an electronic monitoring tool in order to identify, punish, or
    17  obtain information about employees engaging in activity protected  under
    18  labor or employment law;
    19    (vi) conduct audio or visual monitoring of bathrooms or other similar-
    20  ly  private  areas,  including locker rooms, changing areas, breakrooms,
    21  smoking areas, employee cafeterias, lounges, areas designated to express
    22  breast milk, or areas designated for prayer or other religious activity,
    23  including data collection on the  frequency  of  use  of  those  private
    24  areas;
    25    (vii)  conduct audio or visual monitoring of a workplace in an employ-
    26  ee's residence, an employee's personal vehicle,  or  property  owned  or
    27  leased by an employee;
    28    (viii)  use  an  electronic  monitoring  tool that incorporates facial
    29  recognition, gait, voice analysis, or emotion recognition technology;
    30    (ix) take adverse action against an employee based in whole or in part
    31  on their opposition or refusal to submit to a practice that the employee
    32  believes in good faith violates this article;
    33    (x) take adverse employment action against an employee on the basis of
    34  data collected via continuous incremental time-tracking tools except  in
    35  the case of egregious misconduct;
    36    (xi)  take  adverse employment action against an employee based on any
    37  data collected via  electronic  monitoring  if  such  data  measures  an
    38  employee's  performance  in  relation to a performance standard that has
    39  not been previously disclosed to such employee in violation of  subpara-
    40  graph  (vi)  of  paragraph (b) of subdivision one of this section, or if
    41  such data was collected without proper notice to employees or candidates
    42  pursuant to section  fifty-two-e of the civil rights law; or
    43    (xii)  where  employees  have  union  representation  and  where   not
    44  preempted  by  federal  law,  refuse to bargain over the implementation,
    45  use, and ongoing evaluation of electronic monitoring tools.
    46    (b) An employer shall not use employee data collected via an electron-
    47  ic monitoring   tool for purposes other  than  those  specified  in  the
    48  notice  provided  pursuant  to  paragraph (b) of subdivision one of this
    49  section.
    50    (c)  An  employer shall not sell, transfer, or disclose employee  data
    51  collected  via  an  electronic   monitoring   tool   to any other entity
    52  unless it is required to do so under state or federal law, or  necessary
    53  to  do so to comply with an impact assessment of an automated employment
    54  decision tool pursuant to section one thousand twelve of this article.
    55    (d) An employer shall not require employees to:

        S. 7623--B                          7

     1    (i) physically implant devices that collect or transmit data,  includ-
     2  ing devices that are installed subcutaneously or incorporated into items
     3  of clothing or personal accessories;
     4    (ii) install applications on personal devices that collect or transmit
     5  employee data or  to wear or  embed those devices; or
     6    (iii)  carry  or use any device with location tracking applications or
     7  services enabled unless the location tracking is:
     8    (A) conducted during work hours; and
     9    (B) strictly necessary  to  accomplish  essential  job  functions  and
    10  narrowly  limited to  only  the activities and times necessary to accom-
    11  plish essential job functions.
    12    (e)  An  employer  shall not rely primarily on employee data collected
    13  through electronic monitoring  when  making  hiring,  promotion,  termi-
    14  nation,  disciplinary,  or  compensation  decisions.  For an employer to
    15  satisfy the requirements of this paragraph:
    16    (i) An employer must establish  meaningful  human  oversight  of  such
    17  decisions  based  in  whole or part on data collected through electronic
    18  monitoring.
    19    (ii) A human  decision-maker  must  actually  review  any  information
    20  collected through electronic monitoring, verify that such information is
    21  accurate and up to date, review any pending employee requests to correct
    22  erroneous  data,  and  exercise independent judgment in making each such
    23  decision; and
    24    (iii) The human decision-maker must consider  information  other  than
    25  information  collected  through  electronic  monitoring when making each
    26  such decision, such as but not  limited  to  supervisory  or  managerial
    27  evaluations, personnel files, employee work products, or peer reviews.
    28    (f) When an employer makes a hiring, promotion, termination, discipli-
    29  nary  or  compensation  decision based in whole or part on data gathered
    30  through the use of electronic monitoring, it shall disclose to  affected
    31  employees  at  least  fourteen  days  prior  to  the decision going into
    32  effect:
    33    (i) that the decision was based in whole or part based on  data  gath-
    34  ered through electronic monitoring;
    35    (ii)  the  specific electronic monitoring tool or tools used to gather
    36  such data;
    37    (iii) the specific data, and judgments based upon such data,  used  in
    38  the decision-making process; and
    39    (iv)  any  information  used  in  the decision-making process gathered
    40  through sources other than electronic monitoring.
    41    § 1012. Automated employment decision tools. 1. (a) It shall be unlaw-
    42  ful for an employer to use an automated employment decision tool for  an
    43  employment  decision  unless such tool has been the subject of an impact
    44  assessment.  Impact assessments for automated employment decision  tools
    45  must:
    46    (i)  be conducted no more than one year prior to the use of such tool,
    47  or where the tool was in use by the employer before the  effective  date
    48  of  this  article, within six months of the effective date of this arti-
    49  cle;
    50    (ii) be conducted by an independent and impartial party with no finan-
    51  cial or legal conflicts of interest;
    52    (iii) identify and describe the  attributes  and  modeling  techniques
    53  that the tool uses to produce outputs;
    54    (iv)  evaluate whether those attributes and techniques are a scientif-
    55  ically valid means of evaluating an employee or candidate's  performance
    56  or  ability  to  perform  the essential functions of a role, and whether

        S. 7623--B                          8
 
     1  those attributes may function as a proxy for belonging  to  a  protected
     2  class;
     3    (v)  consider, identify, and describe any disparities in the data used
     4  to train or develop the tool and  describe  how  those  disparities  may
     5  result  in a disparate impact on persons belonging to a protected class,
     6  and what actions may be taken by the employer or vendor of the  tool  to
     7  reduce or remedy any disparate impact;
     8    (vi) consider, identify, and describe any outputs produced by the tool
     9  that  may  result  in  a  disparate  impact  on  persons  belonging to a
    10  protected class, and what actions may be taken by the employer or vendor
    11  of the tool to reduce or remedy that disparate impact;
    12    (vii) evaluate whether the use of the tool may limit accessibility for
    13  persons with disabilities, or for persons with any specific  disability,
    14  and  what  actions may be taken by the employer or vendor of the tool to
    15  reduce or remedy the concern;
    16    (viii) consider and  describe  potential  sources  of  adverse  impact
    17  against protected classes that may arise after the tool is deployed;
    18    (ix)  identify and describe any other assessment of risks of discrimi-
    19  nation or a disparate impact of the tool on members of a protected class
    20  that arise over the course of the impact assessment,  and  what  actions
    21  may be taken to reduce or remedy that risk;
    22    (x)  for  any finding of a disparate impact or limit on accessibility,
    23  evaluate whether the data set, attribute, or  feature  of  the  tool  at
    24  issue  is  the  least  discriminatory  method of assessing a candidate's
    25  performance or ability to perform job functions; and
    26    (xi) be submitted in its entirety or an accessible summary form to the
    27  department for inclusion in a public registry of such impact assessments
    28  within sixty days of completion and distributed to employees who may  be
    29  subject to the tool.
    30    (b)  An employer shall conduct or commission subsequent impact assess-
    31  ments each year that the tool is in use to assist or replace  employment
    32  decisions.  Subsequent impact assessments shall comply with the require-
    33  ments  of  paragraph  (a)  of  this  subdivision,  and  shall assess and
    34  describe any change in the validity or disparate impact of the tool.
    35    (c) An employer or vendor shall retain all documentation pertaining to
    36  the design, development, use, and data of an automated employment  deci-
    37  sion  tool  that  may be necessary to conduct an impact assessment. This
    38  includes but is not limited to the source of the data  used  to  develop
    39  the tool, the technical specifications of the tool, individuals involved
    40  in  the  development  of the tool, and historical use data for the tool.
    41  Such documentation must include a historical record of versions  of  the
    42  tool,  such  that  an  employer  shall be able to attest in the event of
    43  litigation disputing an employment decision, the nature  and  specifica-
    44  tions  of  the  tool as it was used at the time of that employment deci-
    45  sion. Such documentation shall be stored in accordance with such record-
    46  keeping, data retention, and security requirements as  the  commissioner
    47  may specify, and in such a manner as to be legible and accessible to the
    48  party conducting an impact assessment.
    49    (d)  If  an  initial  or  subsequent  impact  assessment  requires the
    50  collection of employee data to  assess  a  tool's  disparate  impact  on
    51  employees, such data shall be collected, processed, stored, and retained
    52  in  such  a  manner  as  to  protect the privacy of employees, and shall
    53  comply with any data retention and security  requirements  specified  by
    54  the  commissioner. Employee data provided to auditors for the purpose of
    55  an impact assessment shall not be shared with the employer, nor shall it

        S. 7623--B                          9
 
     1  be shared with any person, business entity, or other organization unless
     2  strictly necessary for the completion of the impact assessment.
     3    (e)  If  an  initial  or subsequent impact assessment concludes that a
     4  data set, feature, or application of the automated  employment  decision
     5  tool  results  in a disparate impact on persons belonging to a protected
     6  class, or unlawfully limits accessibility for persons with disabilities,
     7  an employer shall refrain from using the tool until it:
     8    (i) takes reasonable and appropriate steps to  remedy  that  disparate
     9  impact  or  limit on accessibility and describe in writing to employees,
    10  the auditor, and the department what steps were taken; and
    11    (ii) if the employer believes  the  impact  assessment  finding  of  a
    12  disparate  impact  or  limit  on accessibility is erroneous, or that the
    13  steps taken in accordance with subparagraph (i) of this paragraph suffi-
    14  ciently address those findings such that the tool may be  lawfully  used
    15  in  accordance with this article, describes in writing to employees, the
    16  auditor, and the department how the data set, feature, or application of
    17  the tool is the least discriminatory method of assessing  an  employee's
    18  performance or ability to complete essential functions of a position.
    19    (f)  It  shall  be  unlawful  for  an  independent auditor, vendor, or
    20  employer to manipulate, conceal,  or  misrepresent  the  results  of  an
    21  impact assessment.
    22    (g)  Nothing  in  this  article  shall  be construed as prohibiting an
    23  employer from implementing a lawful affirmative action plan or  engaging
    24  in  otherwise  lawful  efforts to reduce or eliminate bias in employment
    25  decisions.
    26    2. (a) Any employer that uses an automated employment decision tool to
    27  assess or evaluate an employee or candidate shall notify  employees  and
    28  candidates  subject  to  the  tool no less than ten business days before
    29  such use:
    30    (i) that an  automated  employment  decision  tool  will  be  used  in
    31  connection  with the assessment or evaluation of such employee or candi-
    32  date;
    33    (ii) the job qualifications and characteristics  that  such  automated
    34  employment decision tool will assess, what employee or candidate data or
    35  attributes  the  tool will use to conduct that assessment, and what kind
    36  of outputs the tool will produce as an evaluation of  such  employee  or
    37  candidate;
    38    (iii)  what  employee or candidate data is collected for the automated
    39  employment decision tool, the source of such  data  and  the  employer's
    40  data  retention policy.   Information pursuant to this section shall not
    41  be disclosed where such disclosure would violate local, state, or feder-
    42  al law, or interfere with a law enforcement investigation;
    43    (iv) the results of the most recent impact assessment of the automated
    44  employment decision tool, including any findings of a  disparate  impact
    45  and  associated  response from the employer, or information about how to
    46  access that information if publicly available;
    47    (v) information about how an employee  or  candidate  may  request  an
    48  alternative selection process or accommodation that does not involve the
    49  use  of  an  automated  employment  decision tool and details about that
    50  alternative process or accommodation process; and
    51    (vi) information about how the employee or candidate may:
    52    (A) request reevaluation of the employment decision made by the  auto-
    53  mated  employment  decision tool in accordance with section one thousand
    54  thirteen of this article; and

        S. 7623--B                         10

     1    (B) notification of the  employee  or  candidate's  right  to  file  a
     2  complaint  in  a  civil  court  in  accordance with section one thousand
     3  fifteen of this article.
     4    (b) The notice required by this subdivision shall be:
     5    (i) written in clear and plain language;
     6    (ii)  included  in each job posting or advertisement for each position
     7  for which the automated employment decision tool will be used;
     8    (iii) posted on the  employer's  website  in  any  language  that  the
     9  employer regularly uses to communicate with employees;
    10    (iv) provided directly to each candidate who applies for a position in
    11  the language with which that candidate communicates with the employer;
    12    (v) made available in formats that are accessible to employees who are
    13  blind or have other disabilities; and
    14    (vi)  otherwise  presented in a manner that ensures the notice clearly
    15  and effectively communicates the required information to employees.
    16    3. (a) Notwithstanding the  provisions  of  subdivision  one  of  this
    17  section,  an  employer  shall not, alone or in conjunction with an elec-
    18  tronic monitoring tool, use an automated employment decision tool:
    19    (i) in such a manner that results in a violation of labor, employment,
    20  civil rights or human rights law or any other law of this state;
    21    (ii) in a manner that harms or is likely to harm the health or  safety
    22  of  employees, including by setting productivity quotas in a manner that
    23  is likely to cause physical or mental illness or injury;
    24    (iii) to make predictions about an employee or candidate  for  employ-
    25  ment's  behavior,  beliefs, intentions, personality, emotional state, or
    26  other characteristic or behavior;
    27    (iv) to predict, interfere with, restrain, or coerce employees  engag-
    28  ing in activity protected under labor and employment law;
    29    (v)  to  subtract from an employee's wages time spent exercising their
    30  legal rights;
    31    (vi) in a manner not consistent with the scope of the  impact  assess-
    32  ment required by subdivision one of this section; or
    33    (vii)  that  involves facial recognition, gait, or emotion recognition
    34  technologies.
    35    (b) An employer shall not rely primarily on output from  an  automated
    36  employment  decision  tool  when  making hiring, promotion, termination,
    37  disciplinary, or compensation decisions.  For an employer to satisfy the
    38  requirements of this paragraph:
    39    (i) An employer must establish  meaningful  human  oversight  of  such
    40  decisions  based  in whole or in part on the output of automated employ-
    41  ment decision tools.
    42    (ii) A human decision-maker must actually  review  any  output  of  an
    43  automated  employment decision tool and exercise independent judgment in
    44  making each such decision;
    45    (iii) The human decision-maker must consider  information  other  than
    46  automated  employment  decision tool outputs when making each such deci-
    47  sion, such as but not limited to supervisory or managerial  evaluations,
    48  personnel files, employee work products, or peer reviews; and
    49    (iv)  An  employer  shall  consider  information  other than automated
    50  employment decision tool outputs when making hiring,  promotion,  termi-
    51  nation,  disciplinary, or compensation decisions, such as supervisory or
    52  managerial evaluations, personnel files, employee work products, or peer
    53  reviews.
    54    (c) An employer may not, where employees have union representation and
    55  where not preempted by federal law, refuse to bargain over  the  use  of
    56  automated employment decision tools.

        S. 7623--B                         11

     1    (d)  An  employer shall not require employees or candidates to consent
     2  to the use of an automated employment  decision  tool in  an  employment
     3  decision in order to be considered for an employment decision, nor shall
     4  an  employer discipline or  disadvantage  an  employee  or candidate for
     5  employment as a result of their request for accommodation.
     6    §  1013. Data access and accuracy. 1.(a) An employer shall ensure that
     7  any data collected through electronic monitoring that may  be  used  for
     8  the  purposes of an employment decision is accurate and, where relevant,
     9  kept up to date.
    10    (b) A current or former employee whose data  was  collected  by  their
    11  employer  through  electronic monitoring has the right to request a copy
    12  of the employee's own data, and a copy of the aggregated  employee  data
    13  for  similar  employees  at  the same establishment for the   same  time
    14  period, if that data may be or was used for the purposes of  an  employ-
    15  ment  decision.  A  former  employee  is limited to one request per year
    16  pursuant to this subdivision.
    17    (c) An employer that receives a written or oral request  for  informa-
    18  tion   pursuant   to  this  section  shall  comply  with  the request as
    19  soon as practicable, but no later than seven calendar days from the date
    20  of the request. An employer shall not take  adverse  action  against  an
    21  employee  based  on  their  request for their own or aggregated employee
    22  data, nor shall an employer provide those  records  at  a  cost  to  the
    23  current or former employee. An employer shall provide information pursu-
    24  ant to this section in English or, if applicable in the language identi-
    25  fied by the employee as the primary language of such employee.
    26    (d)  An  employer that does not monitor this data has no obligation to
    27  provide it.
    28    2. (a) An employer that uses electronic monitoring to collect employee
    29  data to assist in an employment decision must provide employees with the
    30  opportunity to review and request correction of such data  both  at  the
    31  time of its collection and after.
    32    (b)  An  employer that receives an employee request to correct inaccu-
    33  rate data collected through electronic monitoring shall investigate  and
    34  determine whether such data is inaccurate.
    35    (c)  If  an employer, upon investigation, determines that such data is
    36  inaccurate, the employer shall:
    37    (i) promptly correct the inaccurate data and inform  the  employee  of
    38  the employer's decision and action;
    39    (ii)  review and adjust, as appropriate, any employment decisions that
    40  were based on the inaccurate data and inform the employee of the adjust-
    41  ment; and
    42    (iii) inform any third parties with  which  the  employer  shared  the
    43  inaccurate  data,  or  from  which  the employer received the inaccurate
    44  data, and direct them to correct it, and provide  the  employee  with  a
    45  copy of such action.
    46    (d)  If  an  employer, upon investigation, determines that the data is
    47  accurate, the employer shall inform the employee of the decision not  to
    48  amend  the data, the steps taken to verify the accuracy of the data, and
    49  any evidence supporting the decision not to amend the data.
    50    3. (a) An employer that uses data collected via an electronic monitor-
    51  ing tool or outputs from an automated employment decision tool  to  make
    52  an  employment  decision shall provide employees affected by such action
    53  written notice of the decision at least fourteen  calendar  days  before
    54  such  action shall take effect. Such notice of adverse employment action
    55  shall contain:
    56    (i) any performance standards used to make the employment decision;

        S. 7623--B                         12
 
     1    (ii) any of the employee's data collected through electronic  monitor-
     2  ing that was used to make the employment decision;
     3    (iii) any aggregated employee data of employees performing the same or
     4  similar  functions  at  the same establishments for ninety days prior to
     5  the employment decision;
     6    (iv) any outputs from an automated employment decision tool  that  was
     7  used to make the employment decision;
     8    (v)  a  copy  of  the  most  recent impact assessment of any automated
     9  employment decision tool that was used to make the employment  decision;
    10  and
    11    (vi)  what  other  information,  standards,  or  data, other than data
    12  collected via electronic monitoring or  outputs  produced  by  automated
    13  employment  decision tools, was used by the employer to make the employ-
    14  ment decision.
    15    (b) An employee subject  to  an  employment  decision  based  on  data
    16  collected via an electronic monitoring tool or outputs from an automated
    17  employment  decision tool who believes the employment decision to be the
    18  result of inaccurate data or an inaccurate or  erroneous  output  by  an
    19  automated  employment  decision  tool  may request a reevaluation of the
    20  decision by the employer. Such request shall be in writing, including by
    21  text message or electronic mail, and shall include at a minimum:
    22    (i) the employee's name;
    23    (ii) the data or output the employee alleges is inaccurate or  errone-
    24  ous; and
    25    (iii)  any evidence the employee has that such data or output is inac-
    26  curate or erroneous.
    27    (c) An employer that receives a request for reevaluation of an employ-
    28  ment decision pursuant   to   this   section   shall    investigate  the
    29  employee's  claim  of inaccurate or erroneous information and respond to
    30  the employee as soon as practicable, but no later  than  seven  calendar
    31  days  from  the date of the request. If an employer, upon investigation,
    32  concludes that no inaccurate data or erroneous output was used  to  make
    33  the  employment decision, it shall provide the employee with evidence of
    34  such  accuracy  and  validity.  If  an  employer,  upon   investigation,
    35  concludes  that inaccurate data or an erroneous output did contribute to
    36  the employment decision, the employer shall inform the employee in writ-
    37  ing of such error or  inaccuracy  and  take  action  to  reevaluate  the
    38  employee  with corrected data or without the use of an automated employ-
    39  ment decision tool.
    40    § 1014.  Retaliation prohibited. 1. It shall be unlawful for a  person
    41  to  take  any  retaliatory  action,  as defined in section seven hundred
    42  forty of the this chapter, against any employee or candidate because:
    43    (a) such employee or candidate opposes or discloses, or  threatens  to
    44  disclose  to  a  supervisor, hiring manager, or public body an activity,
    45  policy or practice of the employer or vendor that the employee or candi-
    46  date reasonably believes is in violation of this article, or any rule or
    47  regulation issued pursuant to this article;
    48    (b) such employee or candidate provides information to,  or  testifies
    49  before,  any public body conducting an investigation, hearing or inquiry
    50  into any such activity, policy or practice by such employer  or  vendor,
    51  or otherwise participates in such investigation, hearing, or inquiry;
    52    (c)  such  employee or candidate objects to, or refuses to participate
    53  in any such activity, policy or practice;
    54    (d) such employee or candidate exercises their rights protected  under
    55  this section or informs others of such rights; or

        S. 7623--B                         13
 
     1    (e) such person believes that the employee or candidate engaged in any
     2  of  the  activities described in paragraphs (a), (b), (c) or (d) of this
     3  subdivision.
     4    2.  A  candidate  or  employee need not make explicit reference to any
     5  section or provision of this article or of any provision of this chapter
     6  or human rights law to trigger the protections of this section.
     7    3. An employer or other person violates this section where the employ-
     8  ee's protected activity is found to be a  contributing  factor  for  the
     9  adverse  action.  Where the commissioner or a court finds an employer or
    10  other person has violated this section, it may order the  relief  speci-
    11  fied in section two hundred fifteen of the this chapter.
    12    §  1015.  Civil  liability.  1.  If  an employer fails to respond to a
    13  current or former employee or candidate's request for reevaluation of an
    14  employment decision pursuant to section one thousand  thirteen  of  this
    15  article,  or  if  a current or former employee or candidate continues to
    16  have reason to believe they were harmed by the unlawful use of an  inac-
    17  curate  or  biased automated employment decision tool or other violation
    18  of this article, the employee or candidate may initiate an action  in  a
    19  court  of competent jurisdiction to enforce the provisions of this arti-
    20  cle. An employer that violates this article shall be liable  for  liqui-
    21  dated  damages  in the amount of five hundred dollars for each violation
    22  or, where an employee or candidate has  suffered  actual  damages  as  a
    23  result  of such violation such as reduced pay, worse working conditions,
    24  denial of advancement or access to better  pay  or  working  conditions,
    25  discipline,  or  termination,  then  the  employer shall be liable to an
    26  affected employee or candidate for the greater of liquidated damages  or
    27  two  times  the  employee  or  candidate's  actual  damages, which shall
    28  include back pay, front pay, and  lost  benefits,  and  may  be  awarded
    29  injunctive,  declaratory,  and  the  employee may be awarded damages for
    30  emotional distress and any other reasonable or  appropriate  relief.  An
    31  employer  shall also be liable for reasonable attorneys' fees and costs,
    32  except such liquidated damages may be up to the greater of one  thousand
    33  dollars  for  each violation or three times actual damages if found that
    34  the actions were willful, or in the case of violations  of  section  one
    35  thousand  fourteen  of  this  article,  such  relief  as is specified in
    36  section two hundred fifteen of this chapter.
    37    2. In any civil action claiming that an  employer  has  violated  this
    38  article  in  its  use  of  electronic monitoring or automated employment
    39  decision tools, any person, employer, vendor, or other  business  entity
    40  that used, sold, distributed, or developed the tool shall be jointly and
    41  severally  liable  to  a prevailing plaintiff for all damages awarded to
    42  that prevailing plaintiff, except that where a person, employer, vendor,
    43  or other business entity knowingly sells,  provides,  or  distributes  a
    44  tool  to  an employer with fewer than fifteen employees, the vendor, not
    45  the small employer, shall be liable for any unlawful acts.
    46    § 1016. Violations. 1. (a) Each day on which an electronic  monitoring
    47  tool  or automated employment decision tool is used in violation of this
    48  article shall give rise to a separate violation of this article.
    49    (b) Failure to provide any notice to a candidate  or  an  employee  in
    50  violation  of section one thousand eleven or one thousand twelve of this
    51  article shall constitute a separate violation.
    52    (c) Any person who violates any provision of this article or any  rule
    53  promulgated  pursuant  to this article may be liable for a civil penalty
    54  in the amounts provided  under  paragraph  (b)  of  subdivision  one  of
    55  section  two  hundred  fifteen  of  this  chapter  in  order  to  punish
    56  violations and deter future violations.

        S. 7623--B                         14
 
     1    2. The attorney general may initiate in a court of competent jurisdic-
     2  tion action that may be appropriate or necessary for correction  of  any
     3  violation  of  this  article,  including  mandating  compliance with the
     4  provisions of this article, securing  any  of  the  remedies  authorized
     5  under  this  article including recovering damages and liquidated damages
     6  as specified in section one thousand fourteen of this article and secur-
     7  ing injunctive, declaratory, or such other relief as may be appropriate,
     8  and ordering payment of civil penalties.
     9    3. The provisions of this article shall not be construed as  to  limit
    10  the  authority of the division of human rights to enforce the provisions
    11  of article fifteen of the executive law, or as to  preempt  any  munici-
    12  pality  from  adopting  a  local  law,  rule, or regulation establishing
    13  requirements, standards, or enforcement measures in  addition  to  those
    14  established under this article.
    15    § 1017. Powers of the commissioner. 1. The commissioner shall:
    16    (a)  promulgate  rules  specifying  the  data retention, security, and
    17  privacy requirements for all data collected during the  course  of,  and
    18  all results or outputs of, the impact assessments required by this arti-
    19  cle;
    20    (b)  develop  and  publish model employer notices for the use of elec-
    21  tronic monitoring and automated employment decision tools that employers
    22  may utilize in their adoption of the notices required by  this  article;
    23  and
    24    (c) promulgate such other rules and regulations as may be necessary to
    25  carry out this article.
    26    2.  The  commissioner  shall  establish  an administrative process for
    27  receiving and investigating complaints from employees and candidates  or
    28  their  representatives.  The  commissioner shall have the same powers of
    29  investigation as under article nineteen of this chapter. If after inves-
    30  tigation the commissioner finds that an employer or person has  violated
    31  any  provision  of  this section, the commissioner may exercise the same
    32  enforcement powers provided under paragraph (b) of  subdivision  one  of
    33  section  two  hundred  fifteen  of this chapter and may order any relief
    34  that may be appropriate or necessary for correction of any violation  of
    35  this article, including mandating compliance with the provisions of this
    36  article,  securing  any  of  the  remedies authorized under this article
    37  including recovering damages and  liquidated  damages  as  specified  in
    38  section  one  thousand fourteen of this article and securing injunctive,
    39  declaratory, or other relief as may be appropriate, and ordering payment
    40  of civil penalties or reasonable attorneys' fees and costs.
    41    3. The commissioner shall establish a means  of  collecting,  storing,
    42  and  making  publicly  available  any impact assessments or summaries of
    43  impact assessments submitted by employers or vendors in the  state.  The
    44  commissioner  shall promulgate rules and regulations by which employers,
    45  vendors, or employees may request the redaction of  certain  information
    46  from  said  impact assessments or summaries thereof, if that information
    47  is proprietary, sensitive, or poses a threat to the privacy of employees
    48  or candidates.
    49    § 2. Section 52-c of the civil rights law, as added by chapter 583  of
    50  the  laws  of  2021,  is  renumbered section 52-e and amended to read as
    51  follows:
    52    § 52-e. Employers  engaged  in  electronic  monitoring;  prior  notice
    53  required.  1.  For purposes of this section, employer means any individ-
    54  ual, corporation, partnership, firm, or  association  with  a  place  of
    55  business  in  the state. It shall not include the state or any political
    56  subdivision of the state.

        S. 7623--B                         15
 
     1    2. (a) Any employer who monitors  or  otherwise  intercepts  telephone
     2  conversations  or  transmissions,  electronic  mail or transmissions, or
     3  internet access or usage of or by an employee by any  electronic  device
     4  or  system,  including  but  not limited to the use of a computer, tele-
     5  phone, wire, radio, or electromagnetic, photoelectronic or photo-optical
     6  systems,  shall  give  prior written notice upon hiring to all employees
     7  who are subject to electronic monitoring. The notice  required  by  this
     8  subdivision  shall be in writing, in an electronic record, or in another
     9  electronic form and acknowledged by the employee either  in  writing  or
    10  electronically.  Each  employer shall also post the notice of electronic
    11  monitoring in a conspicuous place which is readily available for viewing
    12  by its employees who are subject to electronic monitoring.  Such written
    13  notice shall comply with the requirements of article thirty-six  of  the
    14  labor law.
    15    (b)  For  purposes of written notice required by paragraph (a) of this
    16  subdivision, an employee shall be advised that  any  and  all  telephone
    17  conversations  or  transmissions,  electronic  mail or transmissions, or
    18  internet access or usage by an employee  by  any  electronic  device  or
    19  system,  including  but not limited to the use of a computer, telephone,
    20  wire, radio or electromagnetic, photoelectronic or photo-optical systems
    21  may be subject to monitoring at any and all  times  and  by  any  lawful
    22  means.
    23    3.  The  attorney  general may enforce the provisions of this section.
    24  Any employer found to be in violation of this section shall  be  subject
    25  to  a  maximum  civil  penalty  of  five  hundred  dollars for the first
    26  offense, one thousand dollars for the second offense and three  thousand
    27  dollars for the third and each subsequent offense.
    28    4.  The  provisions  of this section shall not apply to processes that
    29  are designed to manage the type or volume of incoming or outgoing  elec-
    30  tronic  mail  or  telephone  voice  mail or internet usage, that are not
    31  targeted to monitor or intercept the electronic mail or telephone  voice
    32  mail  or  internet  usage  of  a  particular  individual,  and  that are
    33  performed solely for the purpose of computer system  maintenance  and/or
    34  protection.
    35    § 3. This act shall take effect on the one hundred eightieth day after
    36  it  shall have become a law. Effective immediately, the addition, amend-
    37  ment and/or repeal of any rule or regulation necessary for the implemen-
    38  tation of this act on its effective date are authorized to be  made  and
    39  completed on or before such effective date.
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