Bill Text: NY S07623 | 2023-2024 | General Assembly | Amended
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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) 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) 2024-05-31 - PRINT NUMBER 7623C [S07623 Detail]
Download: New_York-2023-S07623-Amended.html
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. LBD11940-11-4S. 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'sS. 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; orS. 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 whetherS. 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 itS. 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; andS. 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; orS. 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.
