A00443 Summary:

BILL NO    A00443C

SAME AS    SAME AS S02434-C

SPONSOR    Dinowitz (MS)

COSPNSR    Jaffee, Crespo, Lavine, Colton, Arroyo, Zebrowski, Scarborough,
           Titone, Hooper, Rosenthal, Galef, Kavanagh, Weprin, Abinanti, Thiele,
           Clark, Otis

MLTSPNSR   Brennan, Cook, Glick, Gottfried, Hikind, Jacobs, McDonough, Millman,
           Peoples-Stokes, Raia

Add S201-g, Lab L; add S115, Ed L

Prohibits an employer or educational institution from requesting or requiring
that an employee, applicant or student disclose any user name, password, or
other means for accessing a personal account or service through specified
electronic communications devices.
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A00443 Memo:

BILL NUMBER:A443C

TITLE OF BILL:  An act to amend the labor law and the education law,
in relation to prohibiting an employer or educational institution from
requesting or requiring that an employee, applicant or student
disclose any user name, password, or other means for accessing a
personal account or service through specified electronic
communications devices

PURPOSE OR GENERAL IDEA OF BILL:

This bill would prohibit employers and educational institutions from
requesting or requiring user name and login information including
passwords as a condition of hiring, employment status, for use in
disciplinary actions, as well as admission decision or enrollment
status.

SUMMARY OF SPECIFIC PROVISIONS:

Section 1 amends the labor law by adding a new section, 201-g that
would prohibit employers from requesting or requiring access to
personal electronic communication accounts of prospective or current
employees. This section also allows for specific exemptions to the law
when employers would be allowed to request the information.

Section 2 amends the labor law by adding a new section 115 which would
prohibit educational institutions as defined by the section, from
requesting or requiring access to personal electronic communication
accounts of prospective of current students. This section also allows
for specific exemptions to the law when educational institutions would
be allowed to request the information.

Section 3 sets the effective date.

JUSTIFICATION:

Employers and educational institutions, universities in particular,
are beginning to use various types of new tools in decisions dealing
with the hiring, admittance and acceptance, and disciplinary actions
regarding prospective and current employees and students. Recently,
there have been reports of employers demanding login information,
including username and password information to popular social media
websites such as Facebook, Twitter as well as login information to
email accounts and other extremely personal accounts. This information
is being used as a condition of hiring or acceptance to a college, as
well as promotions, lateral movement within companies and in matters
relating to disciplinary action including, but not limited to, firing
of individuals.

This type of request can lead to issues of unfair and discriminatory
hiring and admissions practices and constitutes a serious invasion of
privacy on the behalf of the employer or school. Employees have the
right to make this information either public or private through the
websites and they should have every right to maintain this privacy
when it comes their work place, classroom, or during an interview or
admissions process. In these economic times many people do not have
the option to walk away from a job and are forced to submit to this


request for fear they will not be hired otherwise. This bill would
remedy this issue and leave consumers with their right to privacy and
reduce the risk of unfair and discriminatory hiring and admissions
practices.

PRIOR LEGISLATIVE HISTORY:

2011-12- A.9654- Passed Assembly/S.6831- Referred to Labor

FISCAL IMPLICATIONS:

None to the State.

EFFECTIVE DATE:

This act shall take effect on the 180th day after it shall have become
law.
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A00443 Text:

                           S T A T E   O F   N E W   Y O R K
       ________________________________________________________________________

                                        443--C

                              2013-2014 Regular Sessions

                                 I N  A S S E M B L Y

                                      (PREFILED)

                                    January 9, 2013
                                      ___________

       Introduced by M. of A. DINOWITZ, JAFFEE, CRESPO, LAVINE, COLTON, ARROYO,
         ZEBROWSKI,  SCARBOROUGH,  TITONE,  HOOPER, ROSENTHAL, GALEF, KAVANAGH,
         WEPRIN, ABINANTI, THIELE, CLARK, OTIS -- Multi-Sponsored by --  M.  of
         A.  BRENNAN,  COOK, GLICK, GOTTFRIED, HIKIND, JACOBS, McDONOUGH, MILL-
         MAN, PEOPLES-STOKES, RAIA -- read once and referred to  the  Committee
         on Labor -- reported and referred to the Committee on Codes -- commit-
         tee  discharged, bill amended, ordered reprinted as amended and recom-
         mitted to said committee -- again reported from  said  committee  with
         amendments,  ordered  reprinted  as  amended  and  recommitted to said
         committee -- recommitted to the Committee on Labor in accordance  with
         Assembly  Rule  3, sec. 2 -- reported and referred to the Committee on
         Codes -- committee discharged,  bill  amended,  ordered  reprinted  as
         amended and recommitted to said committee

       AN  ACT  to  amend  the  labor law and the education law, in relation to
         prohibiting an employer or educational institution from requesting  or
         requiring  that  an  employee,  applicant or student disclose any user
         name, password, or other means for accessing  a  personal  account  or
         service through specified electronic communications devices

         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 201-g  to
    2  read as follows:
    3    S 201-G. REQUEST FOR ACCESS TO PERSONAL ACCOUNTS OR SERVICES PROHIBIT-
    4  ED.  1. FOR PURPOSES OF THIS SECTION, THE FOLLOWING WORDS SHALL HAVE THE
    5  FOLLOWING MEANINGS:
    6    (A) "APPLICANT" MEANS AN APPLICANT FOR EMPLOYMENT.
    7    (B) "ELECTRONIC COMMUNICATIONS DEVICE"  MEANS  ANY  DEVICE  THAT  USES
    8  ELECTRONIC SIGNALS TO CREATE, TRANSMIT, AND RECEIVE INFORMATION, INCLUD-
    9  ING,  BUT NOT LIMITED TO COMPUTERS, TELEPHONES, PERSONAL DIGITAL ASSIST-
   10  ANTS AND OTHER SIMILAR DEVICES.

        EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                             [ ] is old law to be omitted.
                                                                  LBD03108-07-4
       A. 443--C                           2

    1    (C) "EMPLOYER" MEANS (I) A PERSON OR ENTITY  ENGAGED  IN  A  BUSINESS,
    2  INDUSTRY,  PROFESSION, TRADE OR OTHER ENTERPRISE IN THE STATE; OR (II) A
    3  UNIT OF STATE OR LOCAL GOVERNMENT; AND (III)  SHALL  INCLUDE  AN  AGENT,
    4  REPRESENTATIVE OR DESIGNEE OF THE EMPLOYER.
    5    2.  (A)  EXCEPT  AS  PROVIDED IN PARAGRAPH (B) OF THIS SUBDIVISION, IT
    6  SHALL BE UNLAWFUL FOR ANY EMPLOYER TO REQUEST OR REQUIRE ANY EMPLOYEE OR
    7  APPLICANT FOR EMPLOYMENT TO DISCLOSE ANY USER NAME,  PASSWORD  OR  OTHER
    8  MEANS  FOR ACCESSING A PERSONAL ACCOUNT OR SERVICE THROUGH AN ELECTRONIC
    9  COMMUNICATIONS DEVICE.
   10    (B) AN EMPLOYER MAY REQUIRE AN EMPLOYEE TO  DISCLOSE  ANY  USER  NAME,
   11  PASSWORD  OR  OTHER MEANS FOR ACCESSING NONPERSONAL ACCOUNTS OR SERVICES
   12  THAT PROVIDE ACCESS TO THE EMPLOYER'S INTERNAL COMPUTER  OR  INFORMATION
   13  SYSTEMS.
   14    (C)  FOR  THE  PURPOSES OF THIS SECTION, "ACCESS" SHALL NOT INCLUDE AN
   15  EMPLOYEE OR APPLICANT VOLUNTARILY ADDING AN EMPLOYER OR EMPLOYMENT AGEN-
   16  CY TO THEIR  LIST  OF  CONTACTS  ASSOCIATED  WITH  A  PERSONAL  INTERNET
   17  ACCOUNT.
   18    3. AN EMPLOYER MAY NOT:
   19    (A)  DISCHARGE,  DISCIPLINE,  OR  OTHERWISE  PENALIZE  OR  THREATEN TO
   20  DISCHARGE, DISCIPLINE, OR OTHERWISE PENALIZE AN EMPLOYEE FOR AN  EMPLOY-
   21  EE'S  REFUSAL  TO DISCLOSE ANY INFORMATION SPECIFIED IN PARAGRAPH (A) OF
   22  SUBDIVISION TWO OF THIS SECTION; OR
   23    (B) FAIL OR REFUSE TO HIRE ANY APPLICANT AS A  RESULT  OF  THE  APPLI-
   24  CANT'S REFUSAL TO DISCLOSE ANY INFORMATION SPECIFIED IN PARAGRAPH (A) OF
   25  SUBDIVISION TWO OF THIS SECTION.
   26    4.  IT SHALL BE AN AFFIRMATIVE DEFENSE TO AN ACTION UNDER THIS SECTION
   27  THAT THE EMPLOYER ACTED TO COMPLY WITH REQUIREMENTS OF A FEDERAL LAW  OR
   28  A LAW OF THIS STATE.
   29    5. (A) NOTHING IN THIS SECTION SHALL PROHIBIT AN EMPLOYER FROM:
   30    (I) REQUESTING OR REQUIRING AN EMPLOYEE TO DISCLOSE ACCESS INFORMATION
   31  TO  AN  ACCOUNT, SERVICE, OR NETWORK PROVIDED BY THE EMPLOYER WHERE SUCH
   32  ACCOUNT, SERVICE, OR NETWORK IS  USED  FOR  BUSINESS  PURPOSES  AND  THE
   33  EMPLOYEE WAS PROVIDED PRIOR NOTICE OF THE EMPLOYER'S RIGHT TO REQUEST OR
   34  REQUIRE SUCH ACCESS INFORMATION;
   35    (II)  ACCESSING  AN ELECTRONIC COMMUNICATIONS DEVICE PAID FOR IN WHOLE
   36  OR IN PART BY THE EMPLOYER WHERE THE PROVISION OF OR  PAYMENT  FOR  SUCH
   37  ELECTRONIC COMMUNICATIONS DEVICE WAS CONDITIONED ON THE EMPLOYER'S RIGHT
   38  TO  ACCESS SUCH DEVICE AND THE EMPLOYEE WAS PROVIDED PRIOR NOTICE OF AND
   39  EXPLICITLY AGREED TO SUCH CONDITIONS. HOWEVER, NOTHING IN THIS  SUBPARA-
   40  GRAPH  SHALL  PERMIT  AN  EMPLOYER  TO  ACCESS  ANY PERSONAL ACCOUNTS OR
   41  SERVICES ON SUCH DEVICE;
   42    (III) COMPLYING WITH A COURT ORDER IN OBTAINING OR PROVIDING  INFORMA-
   43  TION  FROM,  OR  ACCESS  TO,  AN EMPLOYEE'S ACCOUNTS OR SERVICES AS SUCH
   44  COURT ORDER MAY REQUIRE;
   45    (IV) RESTRICTING  OR  PROHIBITING  AN  EMPLOYEE'S  ACCESS  TO  CERTAIN
   46  WEBSITES  WHILE USING AN EMPLOYER'S NETWORK OR WHILE USING AN ELECTRONIC
   47  COMMUNICATIONS DEVICE PAID FOR IN WHOLE OR PART BY  THE  EMPLOYER  WHERE
   48  THE  PROVISION  OF OR PAYMENT FOR SUCH ELECTRONIC COMMUNICATIONS  DEVICE
   49  WAS CONDITIONED ON THE EMPLOYER'S RIGHT TO RESTRICT SUCH ACCESS AND  THE
   50  EMPLOYEE  WAS  PROVIDED  PRIOR  NOTICE  OF  AN EXPLICITLY AGREED TO SUCH
   51  CONDITIONS.
   52    (B) THIS SECTION DOES  NOT  PROHIBIT  OR  RESTRICT  AN  EMPLOYER  FROM
   53  COMPLYING  WITH A DUTY TO SCREEN EMPLOYEES OR APPLICANTS PRIOR TO HIRING
   54  OR TO MONITOR OR RETAIN  EMPLOYEE  COMMUNICATIONS  THAT  IS  ESTABLISHED
   55  UNDER  FEDERAL  LAW  OR BY A SELF REGULATORY ORGANIZATION, AS DEFINED IN
       A. 443--C                           3

    1  SECTION 3(A)(26) OF THE SECURITIES AND EXCHANGE  ACT  OF  1934,  15  USC
    2  78C(A)(26).
    3    (C)  THIS SECTION DOES NOT PROHIBIT OR RESTRICT AN EMPLOYER FROM VIEW-
    4  ING, ACCESSING, OR UTILIZING INFORMATION ABOUT AN EMPLOYEE OR  APPLICANT
    5  THAT  CAN BE OBTAINED WITHOUT ANY REQUIRED ACCESS INFORMATION OR THAT IS
    6  AVAILABLE IN THE PUBLIC DOMAIN.
    7    S 2. The education law is amended by adding a new section 115 to  read
    8  as follows:
    9    S 115. REQUEST FOR ACCESS TO PERSONAL ACCOUNTS OR SERVICES PROHIBITED.
   10  1.  FOR  PURPOSES  OF  THIS  SECTION, THE FOLLOWING WORDS SHALL HAVE THE
   11  FOLLOWING MEANINGS:
   12    (A) "EDUCATIONAL INSTITUTION" MEANS A PUBLIC  OR  PRIVATE  EDUCATIONAL
   13  INSTITUTION  OR  SEPARATE  SCHOOL  OR  DEPARTMENT OF A PUBLIC OR PRIVATE
   14  EDUCATIONAL INSTITUTION, AND INCLUDES AN ACADEMY; ELEMENTARY OR  SECOND-
   15  ARY  SCHOOL;  EXTENSION  COURSE;  KINDERGARTEN;  NURSERY  SCHOOL; SCHOOL
   16  SYSTEM; SCHOOL DISTRICT; INTERMEDIATE SCHOOL DISTRICT;  BUSINESS,  NURS-
   17  ING,  PROFESSIONAL, SECRETARIAL, TECHNICAL, OR VOCATIONAL SCHOOL; PUBLIC
   18  OR PRIVATE EDUCATIONAL TESTING SERVICE OR ADMINISTRATOR; AND AN AGENT OF
   19  AN EDUCATIONAL INSTITUTION. EDUCATIONAL INSTITUTION SHALL  BE  CONSTRUED
   20  BROADLY  TO  INCLUDE PUBLIC AND PRIVATE INSTITUTIONS OF HIGHER EDUCATION
   21  TO THE GREATEST EXTENT CONSISTENT WITH CONSTITUTIONAL LIMITATIONS.
   22    (B) "ELECTRONIC COMMUNICATIONS DEVICE"  MEANS  ANY  DEVICE  THAT  USES
   23  ELECTRONIC SIGNALS TO CREATE, TRANSMIT, AND RECEIVE INFORMATION, INCLUD-
   24  ING,  BUT NOT LIMITED TO COMPUTERS, TELEPHONES, PERSONAL DIGITAL ASSIST-
   25  ANTS AND OTHER SIMILAR DEVICES.
   26    2. IT SHALL BE UNLAWFUL FOR ANY EDUCATIONAL INSTITUTION TO:
   27    (A) REQUEST OR REQUIRE ANY STUDENT OR PROSPECTIVE STUDENT TO  DISCLOSE
   28  ANY  USER NAME, PASSWORD OR OTHER MEANS FOR ACCESSING A PERSONAL ACCOUNT
   29  OR SERVICE THROUGH AN ELECTRONIC COMMUNICATIONS DEVICE; OR
   30    (B) EXPEL, DISCIPLINE, FAIL TO ADMIT, OR OTHERWISE PENALIZE A  STUDENT
   31  OR PROSPECTIVE STUDENT FOR FAILURE TO GRANT ACCESS TO, ALLOW OBSERVATION
   32  OF,  OR DISCLOSE INFORMATION THAT ALLOWS ACCESS TO OR OBSERVATION OF THE
   33  STUDENT'S OR PROSPECTIVE STUDENT'S PERSONAL INTERNET ACCOUNT.
   34    (C) FOR THE PURPOSES OF THIS SECTION, "ACCESS" SHALL  NOT  INCLUDE  AN
   35  EMPLOYEE OR APPLICANT VOLUNTARILY ADDING AN EMPLOYER OR EMPLOYMENT AGEN-
   36  CY  TO  THEIR  LIST  OF  CONTACTS  ASSOCIATED  WITH  A PERSONAL INTERNET
   37  ACCOUNT.
   38    3. NOTHING IN THIS SECTION PROHIBITS AN EDUCATIONAL INSTITUTION FROM:
   39    (A) ACCESSING AN ELECTRONIC COMMUNICATIONS DEVICE PAID FOR IN WHOLE OR
   40  IN PART BY THE EDUCATIONAL INSTITUTION WHERE THE PROVISION OF OR PAYMENT
   41  FOR SUCH ELECTRONIC COMMUNICATIONS DEVICE WAS CONDITIONED ON THE  EDUCA-
   42  TIONAL  INSTITUTION'S  RIGHT  TO  ACCESS SUCH DEVICE AND THE STUDENT WAS
   43  PROVIDED PRIOR NOTICE OF  AND  EXPLICITLY  AGREED  TO  SUCH  CONDITIONS.
   44  HOWEVER,  NOTHING IN THIS PARAGRAPH SHALL PERMIT AN EDUCATIONAL INSTITU-
   45  TION TO ACCESS ANY PERSONAL ACCOUNTS OR SERVICES ON SUCH DEVICE; OR
   46    (B) REQUESTING OR REQUIRING A STUDENT TO DISCLOSE  ACCESS  INFORMATION
   47  TO  AN  ACCOUNT OR SERVICE PROVIDED BY THE EDUCATIONAL INSTITUTION WHERE
   48  SUCH ACCOUNT OR SERVICE IS USED FOR EDUCATIONAL PURPOSES AND THE STUDENT
   49  WAS PROVIDED PRIOR NOTICE OF  THE  EDUCATIONAL  INSTITUTION'S  RIGHT  TO
   50  REQUEST OR REQUIRE SUCH ACCESS INFORMATION.
   51    4. THIS SECTION SHALL NOT PROHIBIT OR RESTRICT AN EDUCATIONAL INSTITU-
   52  TION  FROM  VIEWING, ACCESSING, OR UTILIZING INFORMATION ABOUT A STUDENT
   53  OR APPLICANT THAT CAN BE OBTAINED WITHOUT ANY REQUIRED  ACCESS  INFORMA-
   54  TION OR THAT IS AVAILABLE IN THE PUBLIC DOMAIN.
       A. 443--C                           4

    1    5.  IT  IS AN AFFIRMATIVE DEFENSE TO AN ACTION UNDER THIS SECTION THAT
    2  THE EDUCATIONAL INSTITUTION ACTED  TO  COMPLY  WITH  REQUIREMENTS  OF  A
    3  FEDERAL LAW OR A LAW OF THIS STATE.
    4    S 3. This act shall take effect on the one hundred eightieth day after
    5  it shall have become a law.
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