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A00836 Text:

                STATE OF NEW YORK
                               2023-2024 Regular Sessions
                   IN ASSEMBLY
                                    January 11, 2023
        Introduced  by  M.  of  A. DINOWITZ, L. ROSENTHAL, FAHY, COLTON, WEPRIN,
          REYES, CRUZ, LUNSFORD, DICKENS, JACOBSON -- Multi-Sponsored by  --  M.
          of  A.  COOK,  HYNDMAN  --  read once and referred to the Committee on
        AN ACT to amend the labor law, in relation to  prohibiting  an  employer
          from  requesting  or  requiring that an employee or applicant disclose
          any user name, password, or  other  means  for  accessing  a  personal
          account 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-i  to
     2  read as follows:
     3    §  201-i.  Request  for access to personal accounts prohibited. 1. For
     4  purposes of this section, the following words shall have  the  following
     5  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.
    11    (c)  "Employer"  means  (i)  a person or entity engaged in a business,
    12  industry, profession, trade or other enterprise in the state;  (ii)  the
    13  state  of  New  York;  (iii)  a county, city, town, village or any other
    14  political subdivision or civil division of  the  state;  (iv)  a  school
    15  district or any government entity operating a public school, college, or
    16  university;  (v) a public improvement or special district; (vi) a public
    17  authority, commission or public benefit corporation; or (vii) any  other
    18  public  corporation, agency, instrumentality or unit of government which
    19  exercises governmental power under the laws of  the  state;  and  (viii)
    20  shall include an agent, representative or designee of the employer.
         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.

        A. 836                              2
     1    (d)  "Personal  account"  means an account or profile on an electronic
     2  medium where users may create, share, and view  user-generated  content,
     3  including  uploading  or downloading videos or still photographs, blogs,
     4  video blogs, podcasts, instant messages, or internet website profiles or
     5  locations  that  is  used by an employee or an applicant exclusively for
     6  personal purposes.
     7    2. (a) Except as provided in paragraph (b)  of  this  subdivision,  it
     8  shall  be  unlawful  for  any employer to request, require or coerce any
     9  employee or applicant for employment to:
    10    (i) disclose any user name and password, password, or other  authenti-
    11  cation information for accessing a personal account through an electron-
    12  ic communications device;
    13    (ii)  access  the  employee's  or  applicant's personal account in the
    14  presence of the employer; or
    15    (iii) reproduce in any manner photographs, video, or other information
    16  contained within a personal account obtained by the means prohibited  in
    17  this paragraph.
    18    (b)  An  employer  may  require an employee to disclose any user name,
    19  password or other means for accessing nonpersonal accounts that  provide
    20  access to the employer's internal computer or information systems.
    21    (c)  For  the  purposes of this section, "access" shall not include an
    22  employee or applicant voluntarily  adding  an  employer,  agent  of  the
    23  employer, or employment agency to their list of contacts associated with
    24  a personal internet account.
    25    3. An employer may not:
    26    (a)  Discharge,  discipline,  or  otherwise  penalize  or  threaten to
    27  discharge, discipline, or otherwise penalize an employee for an  employ-
    28  ee's  refusal  to disclose any information specified in paragraph (a) of
    29  subdivision two of this section; or
    30    (b) Fail or refuse to hire any applicant as a  result  of  the  appli-
    31  cant's refusal to disclose any information specified in paragraph (a) of
    32  subdivision two of this section.
    33    4.  It shall be an affirmative defense to an action under this section
    34  that the employer acted to comply with requirements of a federal,  state
    35  or local law.
    36    5. (a) Nothing in this section shall prohibit an employer from:
    37    (i) requesting or requiring an employee to disclose access information
    38  to  an  account  provided by the employer where such account is used for
    39  business purposes and the employee was  provided  prior  notice  of  the
    40  employer's right to request or require such access information;
    41    (ii)  requesting  or requiring an employee to disclose access informa-
    42  tion to an account  known  to  an  employer  to  be  used  for  business
    43  purposes;
    44    (iii)  accessing an electronic communications device paid for in whole
    45  or in part by the employer where the provision of or  payment  for  such
    46  electronic communications device was conditioned on the employer's right
    47  to  access such device and the employee was provided prior notice of and
    48  explicitly agreed to such conditions. However, nothing in this  subpara-
    49  graph  shall  permit an employer to access any personal accounts on such
    50  device;
    51    (iv) complying with a court order in obtaining or  providing  informa-
    52  tion  from, or access to, an employee's accounts as such court order may
    53  require;
    54    (v)  restricting  or  prohibiting  an  employee's  access  to  certain
    55  websites  while using an employer's network or while using an electronic
    56  communications device paid for in whole or part by  the  employer  where

        A. 836                              3
     1  the  provision  of or payment for such electronic communications  device
     2  was conditioned on the employer's right to restrict such access and  the
     3  employee  was  provided  prior  notice  of and explicitly agreed to such
     4  conditions.
     5    (b)  This  section  does  not  prohibit  or  restrict an employer from
     6  complying with a duty to screen employees or applicants prior to  hiring
     7  or  to  monitor  or  retain  employee communications that is established
     8  under federal law or by a self regulatory organization,  as  defined  in
     9  section  3(a)(26)  of  the  securities  and exchange act of 1934, 15 USC
    10  §78c(a)(26).
    11    (c) This section does not prohibit or restrict an employer from  view-
    12  ing,  accessing, or utilizing information about an employee or applicant
    13  that can be obtained without any required access  information,  that  is
    14  available in the public domain, or for the purposes of obtaining reports
    15  of misconduct or investigating misconduct, photographs, video, messages,
    16  or  other information that is voluntarily shared by an employee, client,
    17  or other third party that the employee subject to such report or  inves-
    18  tigation  has  voluntarily given access to contained within such employ-
    19  ee's personal account.
    20    6. The provisions of this section shall not apply to any law  enforce-
    21  ment agency, a fire department or a department of corrections and commu-
    22  nity supervision.
    23    § 2. This act shall take effect on the one hundred eightieth day after
    24  it shall have become a law.
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