STATE OF NEW YORK ________________________________________________________________________ 2611--B 2019-2020 Regular Sessions IN ASSEMBLY January 24, 2019 ___________ Introduced by M. of A. DINOWITZ, L. ROSENTHAL, CRESPO, BUCHWALD, WEPRIN, M. G. MILLER, RODRIGUEZ, OTIS, ABINANTI, SEAWRIGHT, SOLAGES, REYES, TAYLOR, SAYEGH, GOTTFRIED, EPSTEIN, D'URSO, STIRPE, ARROYO, BLAKE, HYNDMAN, DE LA ROSA, STECK, COOK, GLICK, CRUZ, ZEBROWSKI, ORTIZ -- Multi-Sponsored by -- M. of A. DenDEKKER, GALEF, GRIFFIN, JAFFEE, PERRY, SIMON -- read once and referred to the Committee on Consumer Affairs and Protection -- committee discharged, bill amended, ordered reprinted as amended and recommitted to said committee -- again reported from said committee with amendments, ordered reprinted as amended and recommitted to said committee 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 EXPLANATION--Matter in italics (underscored) is new; matter in brackets [] is old law to be omitted. LBD01243-06-9A. 2611--B 2 1 consumer's creditworthiness, credit standing, credit capacity or credit 2 history. 3 § 2. Subdivision (d) of section 380-b of the general business law is 4 relettered subdivision (f) and two new subdivisions (d) and (e) are 5 added to read as follows: 6 (d) (1) Except as provided in this subdivision, it shall be an unlaw- 7 ful discriminatory practice for an employer, labor organization, employ- 8 ment agency or any agent thereof to request or to use for employment 9 purposes the consumer credit history of an applicant for employment or 10 employee, or otherwise discriminate against an applicant or employee 11 with regard to hiring, compensation, or the terms, conditions or privi- 12 leges of employment based on the consumer credit history of the appli- 13 cant or employee. 14 (2) Paragraph one of this subdivision shall not apply to: 15 (i) an employer, or agent thereof, that is required by state or feder- 16 al law or regulations or by a self-regulatory organization as defined in 17 section 3(a)(26) of the securities exchange act of 1934, as amended to 18 use an individual's consumer credit history for employment purposes; 19 (ii) persons applying for positions as or employed: 20 (A) as peace officers or police officers, as those terms are defined 21 in subdivisions thirty-three and thirty-four of section 1.20 of the 22 criminal procedure law, respectively, or in a position with a law 23 enforcement or investigative function in a law enforcement agency; 24 (B) in a position in which an employee is required to be bonded under 25 local, state or federal law; 26 (C) in a position in which an employee is required to possess security 27 clearance under federal law or the law of any state; 28 (D) in a non-clerical position having regular access to trade secrets, 29 intelligence information or national security information; 30 (E) in a position: (I) having access to third party, consumer or 31 employer funds or assets valued at ten thousand dollars or more; or (II) 32 that involves a fiduciary responsibility to the employer with the 33 authority to enter financial agreements or initiate, modify or approve 34 payments, valued at ten thousand dollars or more on behalf of the 35 employer; or 36 (F) in a position with regular duties that allow the employee to 37 design, monitor, access, provision access and/or modify (I) systems, 38 applications or databases containing confidential employer and/or 39 customer data; or (II) digital security systems established to prevent 40 the unauthorized use of the employer's or client's networks or data- 41 bases. 42 (3) Paragraph one of this subdivision shall not be construed to affect 43 the obligations of persons required by state or local law relating to 44 disclosures by public employees of conflicts of interest. 45 (4) As used in this subdivision: 46 (i) The term "intelligence information" means records and data 47 compiled for the purpose of criminal investigation or counterterrorism, 48 including records and data relating to the order or security of a 49 correctional facility, reports of informants, investigators or other 50 persons, or from any type of surveillance associated with an identifi- 51 able individual, or investigation or analysis of potential terrorist 52 threats. 53 (ii) The term "national security information" means any knowledge 54 relating to the national defense or foreign relations of the United 55 States, regardless of its physical form or characteristics, that is 56 owned by, produced by or for, or is under the control of the UnitedA. 2611--B 3 1 States government and is defined as such by the United States government 2 and its agencies and departments. 3 (iii) The term "trade secrets" means information that: (A) derives 4 independent economic value, actual or potential, from not being general- 5 ly known to, and not being readily ascertainable by proper means by 6 other persons who can obtain economic value from its disclosure or use; 7 (B) is the subject of efforts that are reasonable under the circum- 8 stances to maintain its secrecy; and (C) can reasonably be said to be 9 the end product of significant innovation. 10 The term "trade secrets" does not include general proprietary company 11 information such as handbooks and policies. The term "regular access to 12 trade secrets" does not include access to or the use of client, customer 13 or mailing lists. 14 (5) Nothing in this subdivision shall preclude an employer from 15 requesting or receiving consumer credit history information pursuant to 16 a lawful subpoena, court order or law enforcement investigation. 17 (e) (1) Except as otherwise provided in this subdivision, it shall be 18 an unlawful discriminatory practice for any state or municipal agency to 19 request or use for licensing or permitting purposes information 20 contained in the consumer credit history of an applicant, licensee or 21 permittee for licensing or permitting purposes. 22 (2) Paragraph one of this subdivision shall not apply to an agency 23 required by state or federal law or regulations to use an individual's 24 consumer credit history for licensing or permitting purposes. 25 (3) Paragraph one of this subdivision shall not be construed to affect 26 the ability of an agency to consider an applicant's, licensee's, regis- 27 trant's or permittee's failure to pay any tax, fine, penalty or fee for 28 which liability has been admitted by the person liable therefor, or for 29 which judgment has been entered by a court or administrative tribunal of 30 competent jurisdiction, or any tax for which a government agency has 31 issued a warrant, or a lien or levy on property. 32 (4) Nothing in this subdivision shall preclude a licensing agency from 33 requesting, receiving, or using consumer credit history information 34 obtained pursuant to a lawful subpoena, court order or law enforcement 35 investigation. 36 § 3. The division of human rights shall request information from state 37 and local agencies and non-governmental employers regarding the agen- 38 cies' and employers' use of the exemptions established in subdivision 39 (d) of section 380-b of the general business law for purposes of hiring 40 and employment. Within two years of the effective date of this act, the 41 division of human rights shall submit to the legislature a report 42 concerning the results of such request and any relevant feedback from 43 agencies and employers. 44 § 4. This act shall take effect on the one hundred twentieth day after 45 it shall have become a law.