2019-2020 Regular Sessions
                   IN ASSEMBLY
                                    January 24, 2019
          Sponsored by -- M. of A. JAFFEE, PERRY -- read once  and  referred  to
          the Committee on Consumer Affairs and Protection
        AN ACT to amend the general business law, in relation to prohibiting the
          disclosure  or use of a person's consumer credit history to an employ-
          er,  labor  organization,  employment  agency  or  agent  thereof  for
          purposes of employment decisions
          The  People of the State of New York, represented in Senate and Assem-
        bly, do enact as follows:
     1    Section 1. Section 380-a of the general business  law  is  amended  by
     2  adding a new subdivision (u) to read as follows:
     3    (u)  The  term  "consumer credit history" means an individual's credit
     4  worthiness, credit standing, credit  capacity  or  payment  history,  as
     5  indicated by:
     6    (1) a consumer credit report;
     7    (2) credit score; or
     8    (3)  information  an  employer  obtains  directly  from the individual
     9  regarding (i) details about credit accounts, including the  individual's
    10  number  of  credit accounts, late or missed payments, charged-off debts,
    11  items in collections, credit limit or prior credit report inquiries,  or
    12  (ii) bankruptcies, judgments or liens.
    13    A  consumer  credit report shall include any written or other communi-
    14  cation of any information by a consumer reporting agency that bears on a
    15  consumer's creditworthiness, credit standing, credit capacity or  credit
    16  history.
    17    §  2.  Subdivision (d) of section 380-b of the general business law is
    18  relettered subdivision (f) and two new  subdivisions  (d)  and  (e)  are
    19  added to read as follows:
    20    (d)  (1) Except as provided in this subdivision, it shall be an unlaw-
    21  ful discriminatory practice for an employer, labor organization, employ-
         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.

        A. 2611                             2
     1  ment agency or any agent thereof to request or to use, and  a  violation
     2  of  this article for any person to disclose, for employment purposes the
     3  consumer credit history of an applicant for employment or  employee,  or
     4  otherwise  discriminate  against an applicant or employee with regard to
     5  hiring, compensation,  or the terms, conditions or privileges of employ-
     6  ment based on the consumer credit history of the applicant or employee.
     7    (2) Paragraph one of this subdivision shall not apply to:
     8    (i) an employer, or agent thereof, that is required by state or feder-
     9  al law or regulations or by a self-regulatory organization as defined in
    10  section 3(a)(26) of the securities exchange act of 1934, as  amended  to
    11  use an individual's consumer credit history for employment purposes;
    12    (ii) persons applying for positions as or employed:
    13    (A)  as  peace officers or police officers, as those terms are defined
    14  in subdivisions thirty-three and thirty-four  of  section  1.20  of  the
    15  criminal  procedure  law,  respectively,  or  in  a  position with a law
    16  enforcement or investigative function in a law enforcement agency;
    17    (B) in a position in which an employee is required to be bonded  under
    18  local, state or federal law;
    19    (C)  in a position in which an employee is required to posses security
    20  clearance under federal law or the law of any state;
    21    (D) in a non-clerical position having regular access to trade secrets,
    22  intelligence information or national security information;
    23    (E) in a position: (I) having  access  to  third  party,  consumer  or
    24  employer funds or assets valued at ten thousand dollars or more; or (II)
    25  that  involves  a  fiduciary  responsibility  to  the  employer with the
    26  authority to enter financial agreements or initiate, modify  or  approve
    27  payments,  valued  at  ten  thousand  dollars  or  more on behalf of the
    28  employer; or
    29    (F) in a position with regular  duties  that  allow  the  employee  to
    30  design,  monitor,  access,  provision  access and/or modify (I) systems,
    31  applications  or  databases  containing  confidential  employer   and/or
    32  customer  data;  or (II) digital security systems established to prevent
    33  the unauthorized use of the employer's or  client's  networks  or  data-
    34  bases.
    35    (3) Paragraph one of this subdivision shall not be construed to affect
    36  the  obligations  of  persons required by state or local law relating to
    37  disclosures by public employees of conflicts of interest.
    38    (4) As used in this subdivision:
    39    (i)  The  term  "intelligence  information"  means  records  and  data
    40  compiled  for the purpose of criminal investigation or counterterrorism,
    41  including records and data relating  to  the  order  or  security  of  a
    42  correctional  facility,  reports  of  informants, investigators or other
    43  persons, or from any type of surveillance associated with  an  identifi-
    44  able  individual,  or  investigation  or analysis of potential terrorist
    45  threats.
    46    (ii) The term "national  security  information"  means  any  knowledge
    47  relating  to  the  national  defense  or foreign relations of the United
    48  States, regardless of its physical  form  or  characteristics,  that  is
    49  owned  by,  produced  by  or  for, or is under the control of the United
    50  States government and is defined as such by the United States government
    51  and its agencies and departments.
    52    (iii) The term "trade secrets" means  information  that:  (A)  derives
    53  independent economic value, actual or potential, from not being general-
    54  ly  known  to,  and  not  being readily ascertainable by proper means by
    55  other persons who can obtain economic value from its disclosure or  use;
    56  (B)  is  the  subject  of  efforts that are reasonable under the circum-

        A. 2611                             3
     1  stances to maintain its secrecy; and (C) can reasonably be  said  to  be
     2  the end product of significant innovation.
     3    The  term "trade secrets" does not include general proprietary company
     4  information such as handbooks and policies. The term "regular access  to
     5  trade secrets" does not include access to or the use of client, customer
     6  or mailing lists.
     7    (5)  Nothing  in  this  subdivision  shall  preclude  an employer from
     8  requesting or receiving consumer credit history information pursuant  to
     9  a lawful subpoena, court order or law enforcement investigation.
    10    (e)  (1) Except as otherwise provided in this subdivision, it shall be
    11  an unlawful discriminatory practice for any state or municipal agency to
    12  request or use, and a violation  of  this  article  for  any  person  to
    13  disclose,  for licensing or permitting purposes information contained in
    14  the consumer credit history of an applicant, licensee or  permittee  for
    15  licensing or permitting purposes.
    16    (2)  Paragraph  one  of  this subdivision shall not apply to an agency
    17  required by state or federal law or regulations to use  an  individual's
    18  consumer credit history for licensing or permitting purposes.
    19    (3) Paragraph one of this subdivision shall not be construed to affect
    20  the  ability of an agency to consider an applicant's, licensee's, regis-
    21  trant's or permittee's failure to pay any tax, fine, penalty or fee  for
    22  which  liability has been admitted by the person liable therefor, or for
    23  which judgment has been entered by a court or administrative tribunal of
    24  competent jurisdiction, or any tax for which  a  government  agency  has
    25  issued a warrant, or a lien or levy on property.
    26    (4) Nothing in this subdivision shall preclude a licensing agency from
    27  requesting,  receiving,  or  using  consumer  credit history information
    28  obtained pursuant to a lawful subpoena, court order or  law  enforcement
    29  investigation.
    30    § 3. The division of human rights shall request information from state
    31  and  local  agencies  and non-governmental employers regarding the agen-
    32  cies' and employers' use of the exemptions  established  in  subdivision
    33  (d)  of section 380-b of the general business law for purposes of hiring
    34  and employment. Within two years of the effective date of this act,  the
    35  division  of  human  rights  shall  submit  to  the legislature a report
    36  concerning the results of such request and any  relevant  feedback  from
    37  agencies and employers.
    38    § 4. This act shall take effect on the one hundred twentieth day after
    39  it shall have become a law.