S07623 Summary:

Add Art 36 §§1010 - 1016, amd §218, Lab L
Restricts the use by an employer or an employment agency of electronic monitoring or an automated employment decision tool to screen a candidate or employee for an employment decision unless such tool has been the subject of an impact assessment within the last year; requires notice to employment candidates of the use of such tools; provides remedies for violations.
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S07623 Actions:

10/18/2023PRINT NUMBER 7623A
04/12/2024PRINT NUMBER 7623B
05/31/2024PRINT NUMBER 7623C
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S07623 Committee Votes:

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S07623 Floor Votes:

There are no votes for this bill in this legislative session.
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S07623 Text:

                STATE OF NEW YORK
                               2023-2024 Regular Sessions
                    IN SENATE
                                     August 4, 2023
        Introduced  by  Sens.  HOYLMAN-SIGAL,  JACKSON -- 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 accordance with Senate Rule 6, sec. 8 -- committee discharged, bill
          amended,  ordered reprinted as amended and recommitted to said commit-
          tee --  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
          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                        BOUNDARIES ON TECHNOLOGY ACT
     5  Section 1010. Definitions.
     6          1011. Automated employment decision tools; impact assessments.
     7          1012. Automated    employment   decision   tools;   notice   and
     8                  restrictions.
     9          1013. Data access, accuracy, and correction.
    10          1014. Unlawful retaliation.
    11          1015. Vendor notice.
    12          1016. Enforcement.
    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  derived  from machine learning,

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

        S. 7623--C                          2
     1  statistical modeling, data analytics, artificial intelligence, or  simi-
     2  lar  methods  that  issues an output, including a score, classification,
     3  ranking, or recommendation that is used to assist or replace human deci-
     4  sion  making on employment decisions that impact natural persons. "Auto-
     5  mated employment decision tool" does not include a tool  that  does  not
     6  automate,  support, assist or replace discretionary employment decision-
     7  making processes and that does not materially  impact  natural  persons,
     8  including,  but not limited to, a junk email filter, firewall, antivirus
     9  software, calculator, spreadsheet, database, data set, or other compila-
    10  tion of data.
    11    3. "Candidate" means any natural person or their authorized  represen-
    12  tative  seeking employment through an application, or who is screened or
    13  evaluated for recruitment, for a position of employment  by  a  business
    14  operating in the state.
    15    4.  "Employer" means any person who directly or indirectly, or through
    16  an agent or any other person, employs  or  exercises  control  over  the
    17  wages,  benefits,  other compensation, hours, working conditions, access
    18  to work or job opportunities, or other terms or  conditions  of  employ-
    19  ment,  of  any  worker,  including the state, county, town, city, school
    20  district, public authority or  other  governmental  subdivision  of  any
    21  kind.  "Employer" includes any of the employer's agents, contractors, or
    22  subcontractors.
    23    5.  "Employee"  means any natural person or their authorized represen-
    24  tative acting for, employed by, or a person classified as an independent
    25  contractor providing service to, or through, an  employer  operating  in
    26  the state.  An employee shall be deemed to be operating in the state for
    27  purposes  of  deeming  an  employee to be covered by this article if the
    28  employee works at least part time at a location  in  the  state,  or  if
    29  fully  remote, the employee is associated with an office in the state or
    30  supervised by a person who works at least part time at a location in the
    31  state. Employee can mean a former employee.
    32    6. "Employee data" means any information that identifies, relates  to,
    33  describes,  is  reasonably  capable  of  being associated with, or could
    34  reasonably be linked, directly or indirectly, with a particular  employ-
    35  ee,  regardless  of  how  the  information  is  collected,  inferred, or
    36  obtained.  Data includes, but is not limited to, the following:
    37    (a) personal identity information, including  the  individual's  name,
    38  contact  information, government-issued identification number, financial
    39  information, criminal background, or employment history;
    40    (b) biometric information that can be  used  to  establish  individual
    41  identity;
    42    (c)  health  information,  including the individual's medical history,
    43  physical or mental condition, diet or physical activity patterns,  heart
    44  rate,  medical  treatment  or  diagnosis  by a health care professional,
    45  health insurance policy number,  subscriber  identification  number,  or
    46  other unique identifier used to identify the individual; and
    47    (d) data related to workplace activities, including the following:
    48    (i) human resources information, including the contents of an individ-
    49  ual's personnel file or performance evaluations;
    50    (ii)  work process information, such as data relating to an individual
    51  employee's performance, including but not limited to quantities of tasks
    52  performed, quantities of items or materials handled or  produced,  rates
    53  or  speeds  of  tasks  performed,  measurements  or  metrics of employee
    54  performance in relation to a quota, and time categorized  as  performing
    55  tasks or not performing tasks;

        S. 7623--C                          3
     1    (iii)  data  that  captures workplace communications and interactions,
     2  including emails, texts, internal message boards,  and  customer  inter-
     3  action and ratings;
     4    (iv)  device  usage  and  data,  including calls placed or geolocation
     5  information;
     6    (v) inputs to or outputs generated by an automated employment decision
     7  tool that are linked to the individual; and
     8    (vi) data collected or generated on workers to mitigate the spread  of
     9  infectious diseases, including COVID-19, or to comply with public health
    10  measures.
    11    7.  "Employment decision" means any decision made by the employer that
    12  affects wages,  benefits,  other  compensation,  hours,  work  schedule,
    13  performance  evaluation,  hiring, selecting for recruitment, discipline,
    14  promotion, termination, job content, assignment of work, access to  work
    15  opportunities, productivity requirements, and workplace health and safe-
    16  ty.  For persons classified as independent contractors or for candidates
    17  for employment, this means the equivalent of these  decisions  based  on
    18  their contract with or relationship to the employer.
    19    8.  "Impact  assessment"  means  an evaluation by an impartial auditor
    20  that complies with section one thousand eleven of this article.
    21    9. "Impartial auditor" means a  person  or  entity  that  conducts  an
    22  impact  assessment  of an automated employment decision tool in a manner
    23  that exercises objective and impartial judgment on all issues within the
    24  scope of such evaluation or assessment.
    25    10. "Protected class" means a class enumerated in section two  hundred
    26  ninety-six of the executive law.
    27    11.  "Vendor"  means  any  person or entity who sells, distributes, or
    28  develops for sale an automated employment decision tool to be used in an
    29  employment decision made by an employer in the state.  "Vendor" includes
    30  any of the vendor's agents, contractors, or subcontractors.
    31    § 1011. Automated employment decision tools; impact assessments. 1. It
    32  shall be unlawful for an employer with one hundred or more employees  to
    33  use  an  automated  employment  decision tool for an employment decision
    34  unless such tool has been the subject of an impact assessment.    Impact
    35  assessments for automated employment decision tools must:
    36    (a)  be conducted no more than one year prior to the use of such tool,
    37  or where the tool was in use by the employer before the  effective  date
    38  of  this  article, within six months of the effective date of this arti-
    39  cle;
    40    (b) be conducted by an impartial party  with  no  financial  or  legal
    41  conflicts of interest;
    42    (c)  identify and describe the attributes and modeling techniques that
    43  the tool uses to produce outputs;
    44    (d) consider, identify, and describe any outputs produced by the  tool
    45  that  may  result  in  a  disparate  impact  on  persons  belonging to a
    46  protected class, and what actions may be taken by the employer or vendor
    47  of the tool to reduce or remedy that disparate impact;
    48    (e) consider and describe potential sources of adverse impact  against
    49  protected classes that may arise after the tool is deployed;
    50    (f)  identify  and describe any other assessment of risks of discrimi-
    51  nation or a disparate impact of the tool on members of a protected class
    52  that arise over the course of the impact assessment,  and  what  actions
    53  may be taken to reduce or remedy that risk;
    54    (g)  for  any finding of a disparate impact or limit on accessibility,
    55  evaluate whether the data set, attribute, or  feature  of  the  tool  at

        S. 7623--C                          4
     1  issue  is  the  least  discriminatory  method of assessing a candidate's
     2  performance or ability to perform job functions; and
     3    (h)  be submitted in its entirety or an accessible summary form to the
     4  department for inclusion in a public registry of such impact assessments
     5  within sixty days of completion, and distributed to employees who may be
     6  subject to the tool.
     7    2. An employer subject to the provisions of this section shall conduct
     8  or commission subsequent impact assessments each year that the  tool  is
     9  in  use  for employment decisions.   Subsequent impact assessments shall
    10  comply with the requirements of subdivision one  of  this  section,  and
    11  shall assess and describe any change in the validity or disparate impact
    12  of the tool.
    13    3.  An  employer  or  vendor subject to the provisions of this section
    14  shall retain all documentation pertaining to  the  design,  development,
    15  use,  and  data  of  an  automated  employment decision tool that may be
    16  necessary to conduct an impact assessment for a period of three years to
    17  ensure compliance with commissioner requests for data.
    18    4.  If  an  initial  or  subsequent  impact  assessment  requires  the
    19  collection  of  employee  data  to  assess  a tool's disparate impact on
    20  employees, such data shall be collected, processed, stored, and retained
    21  in such a manner as to protect  the  privacy  of  employees,  and  shall
    22  comply  with  any  data retention and security requirements specified by
    23  the commissioner. Employee data provided to auditors for the purpose  of
    24  an impact assessment shall not be shared with the employer, nor shall it
    25  be shared with any person, business entity, or other organization unless
    26  strictly necessary for the completion of the impact assessment.
    27    5. If an initial or subsequent impact assessment concludes that a data
    28  set,  feature,  or application of the automated employment decision tool
    29  results in a disparate impact on persons belonging to a protected class,
    30  an employer shall refrain from using the tool until it:
    31    (a) takes reasonable and appropriate steps to  remedy  that  disparate
    32  impact; and
    33    (b)  where  the  employer  believes the impact assessment finding of a
    34  disparate impact is erroneous, or that the  steps  taken  in  accordance
    35  with  paragraph (a) of this subdivision sufficiently address those find-
    36  ings such that the tool may be lawfully used  in  accordance  with  this
    37  article, the employer shall submit to the commissioner how the data set,
    38  feature,  or  application of the tool is the least discriminatory method
    39  of assessing an employee's performance or ability to complete  essential
    40  functions of a position.
    41    6.  It shall be unlawful for an impartial auditor, vendor, or employer
    42  to manipulate, conceal, or misrepresent the results of an impact assess-
    43  ment.
    44    7. Nothing in this  article  shall  be  construed  as  prohibiting  an
    45  employer  from implementing a lawful affirmative action plan or engaging
    46  in otherwise lawful efforts to reduce or eliminate  bias  in  employment
    47  decisions.
    48    §  1012. Automated employment decision tools; notice and restrictions.
    49  1. (a) Any employer that uses an automated employment decision  tool  to
    50  assess  or  evaluate an employee or candidate shall notify employees and
    51  candidates subject to the tool before or at the time an employment deci-
    52  sion is made:
    53    (i) that an  automated  employment  decision  tool  will  be  used  in
    54  connection  with the assessment or evaluation of such employee or candi-
    55  date;

        S. 7623--C                          5
     1    (ii) the job qualifications and characteristics  that  such  automated
     2  employment decision tool will assess, what employee or candidate data or
     3  attributes  the  tool will use to conduct that assessment, and what kind
     4  of outputs the tool will produce as an evaluation of  such  employee  or
     5  candidate;
     6    (iii)  what  employee or candidate data is collected for the automated
     7  employment decision tool, the source of such  data  and  the  employer's
     8  data  retention policy.   Information pursuant to this section shall not
     9  be disclosed where such disclosure would violate local, state, or feder-
    10  al law, or interfere with a law enforcement investigation; and
    11    (iv) the results of the most recent impact assessment of the automated
    12  employment decision tool, including any findings of a  disparate  impact
    13  and  associated  response from the employer, or information about how to
    14  access that information if publicly available.
    15    (b) The notice required by this subdivision shall be:
    16    (i) written in clear and plain language;
    17    (ii) included in each job posting or advertisement for  each  position
    18  for which the automated employment decision tool will be used; and
    19    (iii)  posted  on  the  employer's website in English and the ten most
    20  commonly spoken non-English languages in the state.
    21    2. (a) Notwithstanding the provisions of section one thousand  ten  of
    22  this article, an employer shall not use an automated employment decision
    23  tool:
    24    (i) in such a manner that results in a violation of labor, employment,
    25  civil rights or human rights law or any other law of this state; or
    26    (ii)  in  a manner not consistent with the scope of the impact assess-
    27  ment required by section one thousand ten of this article.
    28    (b) An employer shall not solely rely  on  output  from  an  automated
    29  employment  decision  tool  when  making hiring, promotion, termination,
    30  disciplinary, or compensation decisions.  For an employer to satisfy the
    31  requirements of this paragraph:
    32    (i) An employer shall establish meaningful  human  oversight  of  such
    33  decisions  based  in whole or in part on the output of automated employ-
    34  ment decision tools. Such meaningful human oversight of  such  decisions
    35  shall  require  consideration  of    information    other than automated
    36  employment decision tool outputs, including but not limited to: supervi-
    37  sory or managerial evaluations, personnel files, employee work products,
    38  or peer reviews.
    39    (c) An employer shall not require employees or candidates  to  consent
    40  to  the  use of an automated employment  decision  tool in an employment
    41  decision in order to be considered for an employment decision, nor shall
    42  an employer discipline or  disadvantage  an  employee  or candidate  for
    43  employment as a result of their request for accommodation.
    44    §  1013.  Data  access,  accuracy, and correction. 1.  (a) An employer
    45  shall ensure that any employee data that is used by an automated employ-
    46  ment decision tool for an employment decision  is  accurate  and,  where
    47  relevant, kept up to date for a period of three years.
    48    (b)  A  current or former employee whose data was used by an automated
    49  employment decision tool for an employment decision  has  the  right  to
    50  request,  and  the  employer shall provide, a copy of the employee's own
    51  data.
    52    (c) Such requested records pursuant to this section shall be  provided
    53  at  no  cost  to  the  current  or former employee. A former employee is
    54  limited to one request per year pursuant to this subdivision.
    55    (d) An employer that receives a written or oral request  for  informa-
    56  tion   pursuant   to  this  section  shall  comply  with  the request as

        S. 7623--C                          6
     1  soon as practicable, but no later than fourteen calendar days  from  the
     2  date of the request.
     3    (e)  An employer shall provide information pursuant to this section in
     4  English or, if applicable, in the language identified by the employee as
     5  the primary language of such employee.
     6    (f) An employer that does not monitor this data has no  obligation  to
     7  provide it.
     8    2.  (a) An employer that receives an employee request to correct inac-
     9  curate data shall investigate and determine whether such data is inaccu-
    10  rate.
    11    (b) If an employer, upon investigation, determines that such  data  is
    12  inaccurate, the employer shall:
    13    (i)  promptly  correct  the inaccurate data and inform the employee of
    14  the employer's decision and action;
    15    (ii) review and adjust, as appropriate, any employment decisions  that
    16  were based on the inaccurate data and inform the employee of the adjust-
    17  ment; and
    18    (iii)  inform  any  third  parties  with which the employer shared the
    19  inaccurate data, or from which  the  employer  received  the  inaccurate
    20  data,  and  direct  them  to correct it, and provide the employee with a
    21  copy of such action.
    22    (c) If an employer, upon investigation, determines that  the  data  is
    23  accurate,  the employer shall inform the employee of the decision not to
    24  amend the data, the steps taken to verify the accuracy of the data,  and
    25  any evidence supporting the decision not to amend the data.
    26    §  1014.  Unlawful  retaliation.  For  purposes of this article, there
    27  shall be a rebuttable presumption of unlawful retaliation if an employer
    28  in any manner discriminates, retaliates, or  takes  any  adverse  action
    29  against  any employee within ninety days of the employee doing either of
    30  the following:
    31    1. Initiating the employee's first request  in  a  calendar  year  for
    32  information pursuant to section one thousand thirteen of this article.
    33    2. Making a complaint related to any violation of this article, inclu-
    34  sive,  to the commissioner, the department, other local or state govern-
    35  mental agency, or the employer.
    36    § 1015. Vendor notice. 1. Any vendor who sells, distributes, or offers
    37  for use to an employer an automated employment decision tool shall noti-
    38  fy employers that use of such tool is subject  to  the  requirements  of
    39  this article. Such notice shall include:
    40    (a)  information  about  the  requirements  of the employer under this
    41  article and the exemption from certain requirements or  liability  under
    42  this article according to the employer's size;
    43    (b) information about the penalties for non-compliance with this arti-
    44  cle and liability imposed on the employer by this article;
    45    (c) a copy of or directions on how to access any assessments of dispa-
    46  rate  impact or bias conducted by the vendor on the automated employment
    47  decision tool; and
    48    (d) information on or directions on how  to  access  more  information
    49  regarding  the  employer's responsibility and liability under this arti-
    50  cle.
    51    2. The notice required by this section shall be:
    52    (a) written in clear and plain language;
    53    (b) provided before an employer may begin use of the automated employ-
    54  ment decision tool; and
    55    (c) otherwise presented in a manner that ensures  the  notice  clearly
    56  and effectively communicates the required information to employers.

        S. 7623--C                          7
     1    §  1016.  Enforcement. 1. The commissioner shall adopt rules and regu-
     2  lations implementing the provisions of this  article.  The  commissioner
     3  shall  be  authorized  to  enforce the provisions of this article and to
     4  assess civil penalties  as provided  in sections two hundred fifteen and
     5  two  hundred  eighteen  of  this chapter. The civil  penalties  provided
     6  for  in  this section shall be in addition to and may be imposed concur-
     7  rently with any other remedy or penalty provided for in this chapter.
     8    2. The attorney general may initiate in a court of competent jurisdic-
     9  tion action that may be appropriate or necessary for correction  of  any
    10  violation  of  this  article,  including  mandating  compliance with the
    11  provisions of this article, securing injunctive,  declaratory,  or  such
    12  other relief as may be appropriate, ordering payment of civil penalties,
    13  and recovering damages and liquidated damages.
    14    §  2.  The  opening  paragraph  of subdivision 1 of section 218 of the
    15  labor law, as amended by chapter 43 of the laws of 2023, is  amended  to
    16  read as follows:
    17    If  the  commissioner  determines  that  an  employer  has  violated a
    18  provision of article six (payment of wages), article  nineteen  (minimum
    19  wage  act),  article  nineteen-A  (minimum wage standards and protective
    20  labor practices for farm workers), article twenty-one-A (warehouse work-
    21  er protection act), article thirty-six (boundaries on  technology  act),
    22  section  two hundred twelve-a, section two hundred twelve-b, section one
    23  hundred sixty-one (day of rest) or section one hundred  sixty-two  (meal
    24  periods)  of  this  chapter,  or a rule or regulation promulgated there-
    25  under, the commissioner shall issue to the employer an  order  directing
    26  compliance  therewith,  which  shall describe particularly the nature of
    27  the alleged violation. A copy of such order shall  be  provided  to  any
    28  employee  who has filed a complaint and any authorized representative of
    29  [him or her] such employee. In addition to directing payment  of  wages,
    30  benefits  or wage supplements found to be due, and liquidated damages in
    31  the amount of one hundred percent of unpaid wages, such order, if issued
    32  to an employer who previously has  been  found  in  violation  of  those
    33  provisions,  rules  or regulations, or to an employer whose violation is
    34  willful or egregious, shall direct payment to  the  commissioner  of  an
    35  additional  sum as a civil penalty in an amount not to exceed double the
    36  total amount of wages, benefits, or wage supplements found to be due. In
    37  no case shall the order direct payment of an amount less than the  total
    38  wages, benefits or wage supplements found by the commissioner to be due,
    39  plus  the  liquidated  damages  in  the amount of one hundred percent of
    40  unpaid wages, the appropriate civil penalty, and interest at the rate of
    41  interest then in effect, as prescribed by the superintendent  of  finan-
    42  cial  services  pursuant  to  section  fourteen-a of the banking law per
    43  annum from the date of the underpayment to  the  date  of  the  payment.
    44  Where the violation is for a reason other than the employer's failure to
    45  pay wages, benefits or wage supplements found to be due, the order shall
    46  direct  payment  to the commissioner of a civil penalty in an amount not
    47  to exceed one thousand dollars  for  a  first  violation,  two  thousand
    48  dollars  for a second violation or three thousand dollars for a third or
    49  subsequent violation. In  assessing  the  amount  of  the  penalty,  the
    50  commissioner  shall give due consideration to the size of the employer's
    51  business, the good faith basis of  the  employer  to  believe  that  its
    52  conduct  was  in  compliance with the law, the gravity of the violation,
    53  the history of previous violations and, in the case of  wages,  benefits
    54  or  supplements  violations, the failure to comply with recordkeeping or
    55  other non-wage requirements.

        S. 7623--C                          8
     1    § 3. This act shall take effect on the one hundred eightieth day after
     2  it shall have become a law. Effective immediately, the addition,  amend-
     3  ment and/or repeal of any rule or regulation necessary for the implemen-
     4  tation  of  this act on its effective date are authorized to be made and
     5  completed on or before such effective date.
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