Bill Text: NY S07623 | 2023-2024 | General Assembly | Amended
NOTE: There are more recent revisions of this legislation. Read Latest Draft
Bill Title: 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 for violations.
Spectrum: Partisan Bill (Democrat 2-0)
Status: (Introduced - Dead) 2024-05-31 - PRINT NUMBER 7623C [S07623 Detail]
Download: New_York-2023-S07623-Amended.html
Bill Title: 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 for violations.
Spectrum: Partisan Bill (Democrat 2-0)
Status: (Introduced - Dead) 2024-05-31 - PRINT NUMBER 7623C [S07623 Detail]
Download: New_York-2023-S07623-Amended.html
STATE OF NEW YORK ________________________________________________________________________ 7623--A 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 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 section 203-g to 2 read as follows: 3 § 203-g. Electronic monitoring and automated employment decision 4 tools. 1. For the purposes of this section, the following terms have the 5 following meanings: 6 (a) "Automated employment decision tool" means any computational proc- 7 ess, automated system, or algorithm utilizing machine learning, statis- 8 tical modeling, data analytics, artificial intelligence, or similar 9 methods that issues a simplified output, including a score, classifica- 10 tion, ranking, or recommendation, that is used to assist or replace 11 decision making for employment decisions that impact natural persons. 12 "Automated employment decision tool" does not include a tool that does 13 not assist or replace employment decision processes and that does not 14 materially impact natural persons, including, but not limited to, a junk 15 email filter, firewall, antivirus software, calculator, spreadsheet, 16 database, data set, or other compilation of data. 17 (b) "Bias audit" means an impartial evaluation by an independent audi- 18 tor, which shall include, at a minimum, the testing of an automated 19 employment decision tool to assess the tool's disparate impact on 20 employees because of their age, race, creed, color, ethnicity, national 21 origin, disability, citizenship or immigration status, marital or fami- 22 lial status, military status, religion, or sex, including sexual orien- EXPLANATION--Matter in italics (underscored) is new; matter in brackets [] is old law to be omitted. LBD11940-03-3S. 7623--A 2 1 tation, gender identity, gender expression, pregnancy, pregnancy 2 outcomes, and reproductive healthcare choices. 3 (c) "Candidate" means any natural person or their authorized represen- 4 tative seeking employment through an application, or who is screened or 5 evaluated for recruitment, for a position of employment by a business 6 operating in the state. 7 (d) "Electronic monitoring tool" means any system that facilitates the 8 collection of data concerning worker activities or communications by any 9 means other than direct observation by a natural person, including the 10 use of a computer, telephone, wire, radio, camera, electromagnetic, 11 photoelectronic, or photo-optical system. 12 (e) "Employer" means any person who directly or indirectly, or through 13 an agent or any other person, employs or exercises control over the 14 wages, benefits, other compensation, hours, working conditions, access 15 to work or job opportunities, or other terms or conditions of employ- 16 ment, of any worker. "Employer" includes any of the employer's labor 17 contractors. 18 (f) "Employee" means any natural person or their authorized represen- 19 tative acting for, employed by, or an independent contractor providing 20 service to, or through, a business operating in the state. 21 (g) "Employee data" means any information that identifies, relates to, 22 describes, is reasonably capable of being associated with, or could 23 reasonably be linked, directly or indirectly, with a particular employ- 24 ee, regardless of how the information is collected, inferred, or 25 obtained. Data includes, but is not limited to, the following: 26 (i) personal identity information, including the individual's name, 27 contact information, government-issued identification number, financial 28 information, criminal background, or employment history; 29 (ii) biometric information, including the individual's physiological, 30 biological, or behavioral characteristics, including the individual's 31 deoxyribonucleic acid (DNA), that can be used, singly or in combination 32 with other data, to establish individual identity; 33 (iii) health, medical, lifestyle, and wellness information, including 34 the individual's medical history, physical or mental condition, diet or 35 physical activity patterns, heart rate, medical treatment or diagnosis 36 by a health care professional, health insurance policy number, subscrib- 37 er identification number, or other unique identifier used to identify 38 the individual; and 39 (iv) any data related to workplace activities, including the follow- 40 ing: 41 (A) human resources information, including the contents of an individ- 42 ual's personnel file or performance evaluations; 43 (B) work process information, such as productivity and efficiency 44 data; 45 (C) data that captures workplace communications and interactions, 46 including emails, texts, internal message boards, and customer inter- 47 action and ratings; 48 (D) device usage and data, including calls placed or geolocation 49 information; 50 (E) audio-video data and other information collected from sensors, 51 including movement tracking, thermal sensors, voiceprints, or facial 52 recognition, emotion, and gait recognition; 53 (F) inputs to or outputs generated by an automated employment decision 54 tool that are linked to the individual; andS. 7623--A 3 1 (G) data that is collected or generated on workers to mitigate the 2 spread of infectious diseases, including COVID-19, or to comply with 3 public health measures. 4 (h) "Employment decision" means any decision made by the employer that 5 affects wages, benefits, other compensation, hours, work schedule, 6 performance evaluation, hiring, selecting for recruitment, discipline, 7 promotion, termination, job content, assignment of work, access to work 8 opportunities, productivity requirements, workplace health and safety, 9 and other terms or conditions of employment. For independent contractors 10 or candidates for employment, this means the equivalent of these deci- 11 sions based on their contract with or relationship to the employer. 12 (i) "Vendor" means any person who sells, distributes, or develops for 13 sale an automated employment decision tool to be used in an employment 14 decision made by an employer in the state. 15 2. (a) It shall be unlawful for an employer to use an electronic moni- 16 toring tool to collect employee data unless: 17 (i) the electronic monitoring tool is primarily intended to accomplish 18 any of the following purposes: 19 (A) allowing a worker to accomplish an essential job function; 20 (B) ensuring the quality of goods and services; 21 (C) periodic assessment of worker performance; 22 (D) ensuring compliance with employment, labor, or other relevant 23 laws; 24 (E) protecting the health, safety, or security of workers, or the 25 security of the employer's facilities or computer networks; 26 (F) administering wages and benefits; or 27 (G) additional purposes to enable business operations as determined by 28 the department; 29 (ii) the specific type of electronic monitoring tool is strictly 30 necessary to accomplish the purpose, exclusively used to accomplish the 31 purpose, and is the least invasive means to the employee that could 32 reasonably be used to accomplish the purpose; and 33 (iii) the specific form of electronic monitoring is limited to the 34 smallest number of workers and collects the least amount of data neces- 35 sary to accomplish the purpose. 36 (b) Any employer that uses an electronic monitoring tool shall give 37 prior written notice to all employees who may be subject to electronic 38 monitoring and post said notice in a conspicuous place which is readily 39 available for viewing by employees, pursuant to subdivision two of 40 section fifty-two-e of the civil rights law. Such notice shall include, 41 at a minimum, the following: 42 (i) a description of the purpose for which the electronic monitoring 43 tool will be used, as specified in subparagraph (i) of paragraph (a) of 44 this subdivision; 45 (ii) a description of the specific employee data to be collected, and 46 the activities, locations, communications, and job roles that will be 47 electronically monitored by the tool; 48 (iii) a description of the dates, times, and frequency that electronic 49 monitoring will occur; 50 (iv) whether and how any employee data collected by the electronic 51 monitoring tool will be used as an input in an automated employment 52 decision tool; 53 (v) whether and how any employee data collected by the electronic 54 monitoring tool will alone or in conjunction with an automated employ- 55 ment decision tool be used to make an employment decision by the employ- 56 er or employment agency;S. 7623--A 4 1 (vi) whether any employee data collected by the electronic monitoring 2 tool will be used to assess employees' productivity performance or to 3 set productivity standards, and if so, how; 4 (vii) a description of where any employee data collected by the elec- 5 tronic monitoring tool will be stored and the length of time it will be 6 retained; and 7 (viii) an explanation for how the specific electronic monitoring prac- 8 tice is the least invasive means available to accomplish the monitoring 9 purpose. 10 (c) An employer shall destroy any employee data collected via an elec- 11 tronic monitoring tool when the initial purpose for collecting the data 12 has been satisfied or at the end of the employee's relationship with the 13 employer, unless the employee has provided written and informed consent 14 to the retention of their data by the employer. 15 (d) Notice of the specific form of electronic monitoring shall be 16 clear and conspicuous and provide the worker with actual notice of elec- 17 tronic monitoring activities. A notice that states electronic monitoring 18 "may" take place or that the employer "reserves the right" to monitor 19 shall not be considered clear and conspicuous. 20 (e) (i) An employer who engages in random or periodic electronic moni- 21 toring of employees shall inform the affected employees of the specific 22 events which are being monitored at the time the monitoring takes place. 23 Notice shall be clear and conspicuous. 24 (ii) Notice of random or periodic electronic monitoring may be given 25 after electronic monitoring has occurred only if necessary to preserve 26 the integrity of an investigation of illegal activity or protect the 27 immediate safety of employees, customers, or the public. 28 3. (a) Notwithstanding the allowable purposes for electronic monitor- 29 ing described in paragraph (a) of subdivision two of this section, an 30 employer shall not: 31 (i) use an electronic monitoring tool in such a manner that results in 32 a violation of labor or employment law; 33 (ii) use an electronic monitoring tool in such a manner as to threaten 34 the health, welfare, safety, or legal rights of employees; 35 (iii) use an electronic monitoring tool to monitor employees who are 36 off-duty and not performing work-related tasks; 37 (iv) use an electronic monitoring tool in order to obtain information 38 about an employee's religious beliefs, health or disability status, or 39 immigration status; 40 (v) use an electronic monitoring tool in order to identify, punish, or 41 obtain information about employees engaging in activity protected under 42 labor and employment law; 43 (vi) use an electronic monitoring tool in order to or with the effect 44 of informing a dynamic wage-setting system; 45 (vii) conduct audio-visual monitoring of bathrooms or other similarly 46 private areas, including locker rooms, changing areas, breakrooms, smok- 47 ing areas, employee cafeterias, lounges, areas designated to express 48 breast milk, or areas designated for prayer or other religious activity, 49 including data collection on the frequency of use of those private 50 areas; 51 (viii) conduct audio-visual monitoring of a workplace in an employee's 52 residence, an employee's personal vehicle, or property owned or leased 53 by an employee, unless that audio-visual monitoring is strictly neces- 54 sary to ensure employee health and safety, to verify the security of 55 company or client data, or to accomplish other similarly compelling 56 purposes;S. 7623--A 5 1 (ix) use an electronic monitoring tool that incorporates facial recog- 2 nition, gait, or emotion recognition technology; 3 (x) discipline or terminate the employment of an employee solely on 4 the basis of their opposition of or refusal to submit to a practice that 5 the employee believes in good faith that violate this section; or 6 (xi) where employees have union representation, refuse to bargain over 7 the use of electronic monitoring tools. 8 (b) An employer shall not use employee data collected via an electron- 9 ic monitoring tool for purposes other than those specified in the 10 notice provided pursuant to paragraph (b) of subdivision two of this 11 section. 12 (c) An employer shall not sell, transfer, or disclose employee data 13 collected via an electronic monitoring tool to any other entity 14 unless it is required to do so under state or federal law, or necessary 15 to do so to comply with a bias audit of an automated employment decision 16 tool pursuant to subdivision four of this section. 17 (d) An employer shall not require employees to either install applica- 18 tions on personal devices that collect or transmit employee data or to 19 wear, embed, or physically implant those devices, including those that 20 are installed subcutaneously or incorporated into items of clothing or 21 personal accessories, unless the electronic monitoring is strictly 22 necessary to accomplish essential job functions and is narrowly limited 23 to only the activities and times necessary to accomplish essential job 24 functions. Location tracking applications and devices shall be disabled 25 outside the activities and times necessary to accomplish essential job 26 functions. 27 (e) An employer shall not rely solely on employee data collected 28 through electronic monitoring when making hiring, promotion, termi- 29 nation, disciplinary, or compensation decisions. 30 (f) The information and judgments involved in an employer's use of 31 electronic monitoring data shall be documented and communicated to 32 affected employees prior to the hiring, promotion, termination, or 33 disciplinary decision going into effect. 34 (g) Data that provides evidence of criminal activity, when independ- 35 ently corroborated by the employer, or captured through the use of 36 reasonable security measures that comply with paragraph (a) of subdivi- 37 sion two of this section, is exempt from this subdivision. 38 4. (a) It shall be unlawful for an employer to use an automated 39 employment decision tool for an employment decision unless such tool has 40 been the subject of a bias audit. Bias audits for automated employment 41 decision tools must: 42 (i) be conducted no more than one year prior to the use of such tool, 43 or where the tool was in use by the employer before this act became a 44 law, within six months of this act becoming a law; and 45 (ii) be conducted by an independent and impartial party with no finan- 46 cial or legal conflicts of interest; 47 (iii) identify and describe the attributes and modeling techniques 48 that the tool uses to produce outputs; 49 (iv) evaluate whether those attributes and techniques are a scientif- 50 ically valid means of evaluating an employee or candidate's performance 51 or ability to perform the essential functions of a role, and whether 52 those attributes may function as a proxy for belonging to a protected 53 class; 54 (v) consider, identify, and describe any disparities in the data used 55 to train or develop the tool and describe how those disparities may 56 result in a disparate impact on persons belonging to a protected class,S. 7623--A 6 1 and what actions may be taken by the employer or vendor of the tool to 2 reduce or remedy any disparate impact; 3 (vi) consider, identify, and describe any disparities in the outputs 4 produced by the tool that may result in a disparate impact on persons 5 belonging to a protected class, and what actions may be taken by the 6 employer or vendor of the tool to reduce or remedy that disparate 7 impact; 8 (vii) evaluate whether the use of the tool may limit accessibility for 9 persons with disabilities, or for persons with any specific disability, 10 and what actions may be taken by the employer or vendor of the tool to 11 reduce or remedy the concern; 12 (viii) identify and describe any other assessment of risks of discrim- 13 ination or a disparate impact of the tool on members of a protected 14 class that arise over the course of the bias audit, and what actions may 15 be taken to reduce or remedy that risk; 16 (ix) for any finding of a disparate impact or limit on accessibility, 17 evaluate whether the data set, attribute, or feature of the tool at 18 issue is the least discriminatory method of assessing a candidate's 19 performance or ability to perform job functions; and 20 (x) be submitted in its entirety or an accessible summary form to the 21 department for inclusion in a public registry of such audits within 22 sixty days of completion and distributed to employees who may be subject 23 to the tool. 24 (b) An employer shall conduct or commission subsequent audits each 25 year that the tool is in use to assist or replace employment decisions. 26 Subsequent audits shall comply with the requirements of paragraph (a) of 27 this subdivision, and shall assess and describe any change in the valid- 28 ity or disparate impact of the tool. 29 (c) An employer or vendor shall retain all documentation pertaining to 30 the design, development, use, and data of an automated employment deci- 31 sion tool that may be necessary to conduct a bias audit. This includes 32 but is not limited to the source of the data used to develop the tool, 33 the technical specifications of the tool, individuals involved in the 34 development of the tool, and historical use data for the tool. Such 35 documentation must include a historical record of versions of the tool, 36 such that an employer shall be able to attest in the event of litigation 37 disputing an employment decision, the nature and specifications of the 38 tool as it was used at the time of that employment decision. Such 39 documentation shall be stored in such a manner as to be legible and 40 accessible to the party conducting a bias audit. 41 (d) If an initial or subsequent bias audit requires the collection of 42 sensitive employee data to assess a tool's disparate impact on employ- 43 ees, such data shall be collected, processed, stored, and retained in 44 such a manner as to protect the privacy of employees. Employee data 45 provided to auditors for the purpose of a bias audit shall not be shared 46 with the employer, nor shall it be shared with any person, business 47 entity, or other organization unless strictly necessary for the 48 completion of the bias audit. 49 (e) If an initial or subsequent bias audit concludes that a data set, 50 feature, or application of the automated employment decision tool 51 results in a disparate impact on persons belonging to a protected class, 52 or unlawfully limit accessibility for persons with disabilities, an 53 employer shall: 54 (i) take reasonable and appropriate steps to reduce or remedy that 55 disparate impact or limit on accessibility and describe in writing to 56 employees, the auditor, and the department what steps were taken; andS. 7623--A 7 1 (ii) if the employer believes the audit finding of a disparate impact 2 or limit on accessibility is erroneous, or that the steps taken in 3 accordance with subparagraph (i) of this paragraph sufficiently address 4 those findings such that the tool may be lawfully used in accordance 5 with this section, describe in writing to employees, the auditor, and 6 the department how the data set, feature, or application of the tool is 7 the least discriminatory method of assessing an employee's performance 8 or ability to complete essential functions of a position; or 9 (iii) if the employer believes the audit finding of a disparate impact 10 or limit on accessibility is part of a lawful affirmative action plan or 11 other lawful effort to reduce or eliminate bias in employment decisions, 12 describe such plan or effort in writing to employees, the auditor, and 13 the department. 14 (f) It shall be unlawful for an independent auditor, vendor, or 15 employer to manipulate, conceal, or misrepresent the results of a bias 16 audit. 17 5. Any employer that uses an automated employment decision tool shall 18 notify employees and candidates subject to the tool no less than ten 19 business days before such use: 20 (a) that an automated employment decision tool will be used in 21 connection with the assessment or evaluation of such employee or candi- 22 date; 23 (b) the job qualifications and characteristics that such automated 24 employment decision tool will assess, what employee or candidate data or 25 attributes the tool will use to conduct that assessment, and what kind 26 of outputs the tool will produce as an evaluation of such employee or 27 candidate; 28 (c) what employee or candidate data is collected for the automated 29 employment decision tool, the source of such data and the employer's 30 data retention policy. Information pursuant to this section shall not 31 be disclosed where such disclosure would violate local, state, or feder- 32 al law, or interfere with a law enforcement investigation; 33 (d) the results of the most recent bias audit of the automated employ- 34 ment decision tool, including any findings of a disparate impact and 35 associated response from the employer, or information about how to 36 access that information if publicly available; 37 (e) information about how an employee or candidate may request an 38 alternative selection process or accommodation that does not involve the 39 use of an automated employment decision tool; and 40 (f) information about how the employee or candidate may (i) request 41 internal review of the employment decision made by the automated employ- 42 ment decision tool in accordance with subdivision seven of this section 43 and (ii) notification of the employee or candidate's right to file a 44 complaint in a civil court in accordance with subdivision eight of this 45 section. 46 6. (a) Notwithstanding the provisions of subdivision four of this 47 section, an employer shall not, alone or in conjunction with an elec- 48 tronic monitoring tool, use an automated employment decision tool: 49 (i) in such a manner that results in a violation of labor or employ- 50 ment law; 51 (ii) in such a manner as to unduly intensify the conditions of work or 52 to harm the health and safety of employees, including by setting unrea- 53 sonable productivity quotas; 54 (iii) to make predictions about an employee or candidate for employ- 55 ment's behavior, beliefs, intentions, personality, emotional state, or 56 other characteristic or behavior;S. 7623--A 8 1 (iv) to predict, interfere with, restrain, or coerce employees engag- 2 ing in activity protected under labor and employment law; 3 (v) to implement a dynamic wage-setting system that pays employees 4 different wages for the same work; 5 (vi) to subtract from an employee's wages time spent exercising their 6 legal rights; or 7 (vii) that involves facial recognition, gait, or emotion recognition 8 technologies. 9 (b) An employer shall not rely solely on output from an automated 10 employment decision tool when making hiring, promotion, termination, 11 disciplinary, or compensation decisions. 12 (i) An employer shall establish meaningful human oversight of hiring, 13 promotion, termination, disciplinary or compensation decisions assisted 14 or replaced by automated employment decision tools. Meaningful human 15 oversight requires: 16 (A) the designation of an internal reviewer with sufficient expertise 17 in the operation of automated employment decision tools, sufficient 18 familiarity with the results of the most recent bias audit of the 19 employer's tool, and sufficient understanding of the outputs of the 20 employer's tool to identify potential errors, discrepancies, or inaccu- 21 racies produced by the tool; 22 (B) that sufficient authority and discretion be granted to the desig- 23 nated internal reviewer to dispute, rerun, or recommend the rejection of 24 an output suspected to be invalid, inaccurate, or discriminatory; and 25 (C) that the designated internal reviewer has the time and resources 26 available to review and evaluate the tool output in accordance with 27 clause (B) of this subparagraph. 28 (ii) An employer shall consider information other than automated 29 employment decision tool outputs when making hiring, promotion, termi- 30 nation, disciplinary, or compensation decisions, such as supervisory or 31 managerial evaluations, personnel files, employee work products, or peer 32 reviews. 33 (c) An employer may not, where employees have union representation, 34 refuse to bargain over the use of automated employment decision tools. 35 (d) An employer shall not require employees or candidates that apply 36 for a position of employment to consent to the use of an automated 37 employment decision tool in an employment decision in order to be 38 considered for an employment decision, nor shall an employer discipline 39 or disadvantage an employee or candidate for employment solely as a 40 result of their request for accommodation. 41 7. (a) An employer shall offer employees and candidates a meaningful 42 opportunity to request a reevaluation of the results of an employment 43 decision made or assisted by an automated employment decision tool, if 44 an employee or candidate believes or suspects that the decision resulted 45 from inaccuracy, error, or bias in the tool, that the tool was used as 46 the sole basis for the decision, or that the employer's use of the tool 47 in some other way violates the provisions of this section, and the 48 employee or candidate was meaningfully harmed by the outcome of the 49 employment decision. An employee or candidate shall within thirty days 50 of being notified of the employment decision provide the employer with a 51 written request for reevaluation. Such written request shall include: 52 (i) the person's name, the employment decision at issue, and how the 53 person was harmed by the outcome of the employment decision; 54 (ii) why the person believes or suspects the employment decision was 55 informed by an inaccurate, erroneous, or biased output, was the resultS. 7623--A 9 1 of an unlawful sole reliance on an automated employment decision tool, 2 or otherwise violated the provisions of this section; 3 (iii) any evidence that may support the person's belief or suspicion; 4 and 5 (iv) what reasonable remedial action the person would like the employ- 6 er to take to investigate or remedy the believed or suspected harm, 7 which may include providing the employee or candidate with outputs or 8 documentation associated with the employment decision, providing the 9 employee or candidate with documentation about the tool's most recent 10 bias audit, or reprocessing the employee or candidate's data through the 11 tool. 12 (b) An employer shall respond in writing to an employee or candidate's 13 written request for reevaluation within sixty days of receipt of such 14 request. Such written response shall include: 15 (i) any employment decision tool outputs regarding the person purport- 16 ing to be harmed by the employment decision that were used in the making 17 of the employment decision; 18 (ii) a description of the information other than the automated employ- 19 ment decision tool output that contributed to the employment decision; 20 (iii) whether the employer agrees with the employee or candidate's 21 belief or suspicion that the decision was informed by an inaccurate, 22 erroneous, or biased tool or output, that the tool was the unlawful sole 23 basis for the decision, or that the employer otherwise violated the 24 provisions of this section in its use of the tool, and why or why not; 25 (iv) if the employer disagrees with the employee or candidate's belief 26 or suspicion, any evidence supporting the tool or output's accuracy and 27 validity, the existence of meaningful human oversight, or the use of 28 bases other than the tool in the making of the decision; 29 (v) if the employee or candidate requested the reprocessing of their 30 data through the tool, the results or outputs of that reprocessing, and 31 whether the results of the reprocessing have changed the employer's 32 employment decision, and why or why not; and 33 (vi) if the employer refuses to take any reasonable remedial action 34 requested by the employee or candidate, why they refuse to do so. 35 8. (a) If an employer fails to respond to an employee or candidate's 36 request for reevaluation, or if the employee or candidate continues to 37 have reason to believe they were harmed by the unlawful use of an inac- 38 curate or biased automated employment decision tool or other violation 39 of this section, the employee or candidate may initiate an action in a 40 court of competent jurisdiction to enforce the provisions of this 41 section. An employer that violates this section shall be liable for 42 actual damages to any employee or candidate that has suffered damages 43 due to such violation, reasonable attorneys' fees and costs, and, unless 44 the employer proves a good faith basis to believe that its actions were 45 in compliance with the law, one hundred percent of the total amount of 46 actual damages, except such liquidated damages may be up to three 47 hundred percent if found that the actions were willful. 48 (b) In any civil action claiming that an employer has violated this 49 section in its use of electronic monitoring or automated employment 50 decision tools, any person, employer, vendor, or other business entity 51 that used, sold, distributed, or developed the tool shall be jointly and 52 severally liable to a prevailing plaintiff for all damages awarded to 53 that prevailing plaintiff, except that where a person, employer, vendor, 54 or other business entity knowingly sells, provides, or distributes a 55 tool to an employer with fewer than fifty employees, the vendor, not the 56 small employer, shall be liable for any unlawful acts.S. 7623--A 10 1 9. (a) Any person who violates any provision of this section or any 2 rule promulgated pursuant to this section is liable for a civil penalty 3 of not more than five hundred dollars for a first violation and each 4 additional violation occurring on the same day as the first violation, 5 and not less than five hundred dollars nor more than fifteen hundred 6 dollars for each subsequent violation. 7 (b) Each day on which an electronic monitoring tool or automated 8 employment decision tool is used in violation of this section shall give 9 rise to a separate violation of this section. 10 (c) Failure to provide any notice to a candidate or an employee in 11 violation of subdivision two or five of this section shall constitute a 12 separate violation. 13 (d) A proceeding to recover any civil penalty authorized by this 14 section is returnable to any tribunal established within any agency 15 designated to conduct such proceedings, or, in a city of over one 16 million in population, such hearing may be held by a hearing officer 17 employed within the office of administrative trials and hearings. 18 10. The attorney general may initiate in a court of competent juris- 19 diction action that may be appropriate or necessary for correction of 20 any violation of this section, including mandating compliance with the 21 provisions of this section or such other relief as may be appropriate. 22 11. The provisions of this section shall not be construed as to limit 23 the authority of the division of human rights to enforce the provisions 24 of article fifteen of the executive law. 25 § 2. (a) The department of labor shall promulgate any rules and regu- 26 lations necessary to implement the provisions of this section. 27 (b) The department of labor shall within one hundred eighty days of 28 this act becoming a law have established a means of collecting, storing, 29 and making publicly available any bias audits or summaries of bias 30 audits submitted by employers or vendors in the state. Such department 31 shall promulgate rules and regulations by which employers, vendors, or 32 employees may request the redaction of certain information from said 33 bias audits or summaries thereof, if that information is proprietary, 34 sensitive, or poses a threat to the privacy of employees or candidates. 35 § 3. Section 52-c of the civil rights law, as added by chapter 583 of 36 the laws of 2021, is renumbered section 52-e and is amended to read as 37 follows: 38 § 52-e. Employers engaged in electronic monitoring; prior notice 39 required. 1. For purposes of this section, employer means any individ- 40 ual, corporation, partnership, firm, or association with a place of 41 business in the state. It shall not include the state or any political 42 subdivision of the state. 43 2. (a) Any employer who monitors or otherwise intercepts telephone 44 conversations or transmissions, electronic mail or transmissions, or 45 internet access or usage of or by an employee by any electronic device 46 or system, including but not limited to the use of a computer, tele- 47 phone, wire, radio, or electromagnetic, photoelectronic or photo-optical 48 systems, shall give prior written notice upon hiring to all employees 49 who are subject to electronic monitoring. The notice required by this 50 subdivision shall be in writing, in an electronic record, or in another 51 electronic form and acknowledged by the employee either in writing or 52 electronically. Each employer shall also post the notice of electronic 53 monitoring in a conspicuous place which is readily available for viewing 54 by its employees who are subject to electronic monitoring. Such written 55 notice shall comply with the requirements of subdivision two of section 56 two hundred three-g of the labor law.S. 7623--A 11 1 (b) For purposes of written notice required by paragraph (a) of this 2 subdivision, an employee shall be advised that any and all telephone 3 conversations or transmissions, electronic mail or transmissions, or 4 internet access or usage by an employee by any electronic device or 5 system, including but not limited to the use of a computer, telephone, 6 wire, radio or electromagnetic, photoelectronic or photo-optical systems 7 may be subject to monitoring at any and all times and by any lawful 8 means. 9 3. The attorney general may enforce the provisions of this section. 10 Any employer found to be in violation of this section shall be subject 11 to a maximum civil penalty of five hundred dollars for the first 12 offense, one thousand dollars for the second offense and three thousand 13 dollars for the third and each subsequent offense. 14 4. The provisions of this section shall not apply to processes that 15 are designed to manage the type or volume of incoming or outgoing elec- 16 tronic mail or telephone voice mail or internet usage, that are not 17 targeted to monitor or intercept the electronic mail or telephone voice 18 mail or internet usage of a particular individual, and that are 19 performed solely for the purpose of computer system maintenance and/or 20 protection. 21 § 4. This act shall take effect on the one hundred eightieth day after 22 it shall have become a law.
