2023-2024 Regular Sessions

                    IN SENATE

                                     August 4, 2023

        Introduced  by Sen. HOYLMAN-SIGAL -- read twice and ordered printed, and
          when printed to be committed to the Committee on Rules

        AN ACT to amend the labor law, in relation to  restricting  the  use  of
          electronic  monitoring and automated employment decision tools; and to
          amend the civil rights law, in relation to making a technical change

          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 203-f to
     2  read as follows:
     3    § 203-f. Electronic  monitoring  and  automated  employment   decision
     4  tools. 1. For the purposes of this section, the following terms have the
     5  following meanings:
     6    (a) "Automated employment decision tool" means any computational proc-
     7  ess,  derived  from machine learning, statistical modeling, data analyt-
     8  ics, or artificial intelligence, that issues simplified output,  includ-
     9  ing  a  score,  classification,  or  recommendation,  that  is  used  to
    10  substantially assist or replace discretionary decision making for making
    11  employment decisions that impact natural persons. "Automated  employment
    12  decision  tool" does not include a tool that does not automate, support,
    13  substantially assist or replace discretionary decision-making  processes
    14  and  that does not materially impact natural persons, including, but not
    15  limited to, a junk email filter, firewall, antivirus software,  calcula-
    16  tor, spreadsheet, database, data set, or other compilation of data.
    17    (b) "Bias audit" means an impartial evaluation by an independent audi-
    18  tor.  Such bias audit shall include but not be limited to the testing of
    19  an  automated  employment  decision  tool to assess the tool's disparate
    20  impact on persons of any component 1 category required to be reported by
    21  employers pursuant to subsection (c) of section 2000e-8 of title  42  of
    22  the  United  States  code as specified in part 1602.7 of title 29 of the
    23  code of federal regulations.

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

        S. 7623                             2

     1    (c) "Electronic monitoring tool" means any system that facilitates the
     2  collection of data concerning worker activities or communications by any
     3  means other than direct observation, including the use  of  a  computer,
     4  telephone,  wire,  radio,  camera,  electromagnetic, photoelectronic, or
     5  photo-optical system.
     6    (d)  "Employer  or employment agency" means any person who directly or
     7  indirectly, or through an agent or any other person,  employs  or  exer-
     8  cises  control over the wages, benefits, other compensation hours, work-
     9  ing conditions, access to work or job opportunities, or other  terms  or
    10  conditions  of employment, of any worker. "Employer" includes any of the
    11  employer's labor contractors.
    12    (e) "Employee" means any natural person or their authorized  represen-
    13  tative  acting  employed  by,  or  an  independent  contractor providing
    14  service to, or through, a business operating in the state  and  residing
    15  in the state.
    16    (f) "Employee data" means any information that identifies, relates to,
    17  describes,  is  reasonably  capable  of  being associated with, or could
    18  reasonably be linked, directly or indirectly, with a particular  employ-
    19  ee,  regardless  of  how  the  information  is  collected,  inferred, or
    20  obtained.  Data includes, but is not limited to, the following:
    21    (i) personal identity information, including  the  individual's  name,
    22  contact  information, government-issued identification number, financial
    23  information, criminal background, or employment history;
    24    (ii) biometric information, including the individual's  physiological,
    25  biological,  or  behavioral  characteristics, including the individual's
    26  deoxyribonucleic acid (DNA), that can be used, singly or in  combination
    27  with other data, to establish individual identity;
    28    (iii)  health, medical, lifestyle, and wellness information, including
    29  the individual's medical history, physical or mental condition, diet  or
    30  physical  activity  patterns, heart rate, medical treatment or diagnosis
    31  by a health care professional, health insurance policy number, subscrib-
    32  er identification number, or other unique identifier  used  to  identify
    33  the individual; and
    34    (iv)  any  data related to workplace activities, including the follow-
    35  ing:
    36    (A) human resources information, including the contents of an individ-
    37  ual's personnel file or performance evaluations;
    38    (B) work process information,  such  as  productivity  and  efficiency
    39  data;
    40    (C)  data  that  captures  workplace  communications and interactions,
    41  including emails, texts, internal message boards,  and  customer  inter-
    42  action and ratings;
    43    (D)  device  usage  and  data,  including  calls placed or geolocation
    44  information;
    45    (E) audio-video data and other  information  collected  from  sensors,
    46  including  movement  tracking, thermal sensors, voiceprints, or faction,
    47  emotion, and gait recognition;
    48    (F) inputs of or outputs generated by an automated employment decision
    49  tool that are linked to the individual; and
    50    (G) data that is collected or generated on  workers  to  mitigate  the
    51  spread  of  infectious  diseases,  including COVID-19, or to comply with
    52  public health measures.
    53    (g) "Employment decision" means any decision made by the employer that
    54  affects wages,  benefits,  other  compensation,  hours,  work  schedule,
    55  performance  evaluation, hiring, discipline, promotion, termination, job
    56  content, assignment of work, access to work opportunities,  productivity

        S. 7623                             3

     1  requirements, workplace health and safety, and other terms or conditions
     2  of employment. For independent contractors or candidates for employment,
     3  this  means  the  equivalent  of these decisions based on their contract
     4  with or relationship to the employer.
     5    2. (a) It shall be unlawful for an employer or an employment agency to
     6  use  an electronic monitoring tool to surveil employees residing in this
     7  state unless:
     8    (i) the electronic monitoring tool is primarily intended to accomplish
     9  any of the following allowable purposes:
    10    (A) allowing a worker to accomplish an essential job function;
    11    (B) monitoring production processes or quality;
    12    (C) assessment of worker performance;
    13    (D) ensuring compliance with  employment,  labor,  or  other  relevant
    14  laws;
    15    (E) protecting the health, safety, or security of workers;
    16    (F) administering wages and benefits; or
    17    (G) additional purposes to enable business operations as determined by
    18  the department; and
    19    (ii)  the  specific  type  of  electronic  monitoring tool is strictly
    20  necessary to accomplish the allowable purpose and is the least  invasive
    21  means  to  the  employee that could reasonably be used to accomplish the
    22  allowable purpose; and
    23    (iii) the specific form of electronic monitoring  is  limited  to  the
    24  smallest  number of workers and collects the least amount of data neces-
    25  sary to accomplish the allowable purpose.
    26    (b) Any employer that uses an electronic monitoring tool shall  notify
    27  employees  it  intends to subject to electronic monitoring who reside in
    28  the state that they will be  subject  to  such  monitoring  pursuant  to
    29  subdivision  two  of  section  fifty-two-c of the civil rights law. Such
    30  notice shall include, at a minimum, the following:
    31    (i) a description of the allowable purpose for  which  the  electronic
    32  monitoring  tool will be used, as specified in subparagraph (i) of para-
    33  graph (a) of this subdivision;
    34    (ii) a description of the specific employee data to be collected,  and
    35  the  activities,  locations,  communications, and job roles that will be
    36  electronically monitored by the tool;
    37    (iii) a description of the dates, times, and frequency that electronic
    38  monitoring will occur;
    39    (iv) whether any employee data collected by the electronic  monitoring
    40  tool will be used as an input in an automated employment decision tool;
    41    (v)  whether  any employee data collected by the electronic monitoring
    42  tool will alone or in conjunction with an automated employment  decision
    43  tool be used to inform an employment decision by the employer or employ-
    44  ment agency;
    45    (vi)  whether any employee data collected by the electronic monitoring
    46  tool will be used to assess employees' productivity  performance  or  to
    47  set productivity standards, and if so, how;
    48    (vii)  a description of where any employee data collected by the elec-
    49  tronic monitoring tool  will  be  stored  and  the  length  it  will  be
    50  retained; and
    51    (viii) an explanation for how the specific electronic monitoring prac-
    52  tice  is  the least invasive means available to accomplish the allowable
    53  monitoring purpose.
    54    (c) An employer or an employment agency shall not  use  employee  data
    55  collected  via  an  electronic  monitoring  tool for purposes other than

        S. 7623                             4

     1  those specified in the notice provided pursuant to paragraph (b) of this
     2  subdivision.
     3    (d)  An  employer or an employment agency shall not sell, transfer, or
     4  disclose employee data collected via an electronic  monitoring  tool  to
     5  any other entity unless required to do so under state or federal law.
     6    (e)  An  employer  or  an employment agency shall destroy any employee
     7  data collected via  an  electronic  monitoring  tool  when  the  initial
     8  purpose  for collecting the data has been satisfied or at the end of the
     9  worker's relationship with the employer, unless there  is  a  reasonable
    10  interest  for  the  worker to access the data after the relationship has
    11  ended.
    12    (f) Notice of the specific form  of  electronic  monitoring  shall  be
    13  clear and conspicuous and provide the worker with actual notice of elec-
    14  tronic monitoring activities. A notice that states electronic monitoring
    15  "may"  take  place  or that the employer "reserves the right" to monitor
    16  shall not be considered clear and conspicuous.
    17    (g) (i) An employer who engages in random or periodic electronic moni-
    18  toring of workers shall inform the  affected  workers  of  the  specific
    19  events which are being monitored at the time the monitoring takes place.
    20  Notice shall be clear and conspicuous.
    21    (ii)  Notice  of random or periodic electronic monitoring may be given
    22  after electronic monitoring has occurred only if necessary  to  preserve
    23  the  integrity  of  an  investigation of illegal activity or protect the
    24  immediate safety of workers, customers, or the public.
    25    (h) An employer shall not require employees to either install applica-
    26  tions on personal devices that collect or transmit employee data  or  to
    27  wear,  embed,  or physically implant those devices, including those that
    28  are installed subcutaneously or incorporated into items of  clothing  or
    29  personal  accessories,  unless  the  electronic  monitoring  is strictly
    30  necessary to accomplish essential job functions and is narrowly  limited
    31  to  only  the activities and times necessary to accomplish essential job
    32  functions. Location-tracking applications and devices shall be  disabled
    33  outside  the  activities and times necessary to accomplish essential job
    34  functions.
    35    3. (a) Notwithstanding the allowable purposes for electronic  monitor-
    36  ing  described  in  paragraph (a) of subdivision two of this section, an
    37  employer shall not:
    38    (i) use an electronic monitoring tool in such a manner that results in
    39  a violation of labor or employment law;
    40    (ii) use an electronic monitoring tool in such a manner as  to  unduly
    41  or  extremely intensify the conditions of work or to harm the health and
    42  safety of employees;
    43    (iii) use an electronic monitoring tool to monitor employees  who  are
    44  off-duty and not performing work-related tasks;
    45    (iv)  use an electronic monitoring tool in order to obtain information
    46  about an employee's religious or political beliefs, health or disability
    47  status, or immigration status;
    48    (v) use an electronic monitoring tool in order to identify, punish, or
    49  obtain information about employees engaging in activity protected  under
    50  labor and employment law;
    51    (vi)  use an electronic monitoring tool in order to or with the effect
    52  of informing a dynamic wage-setting system;
    53    (vii) conduct audio-visual monitoring of bathrooms or other  similarly
    54  private areas, including locker rooms, changing areas, breakrooms, smok-
    55  ing  areas,  employee  cafeterias,  lounges, areas designated to express
    56  breast milk, or areas designated for prayer or other religious activity,

        S. 7623                             5

     1  including data collection on the  frequency  of  use  of  those  private
     2  areas;
     3    (viii) conduct audio-visual monitoring of a workplace in an employee's
     4  residence,  an  employee's personal vehicle, or property owned or leased
     5  by an employee, unless that audio-visual monitoring is  strictly  neces-
     6  sary  to  ensure  employee  health and safety, to verify the security of
     7  company or client data, or  to  accomplish  other  similarly  compelling
     8  purposes;
     9    (ix) use an electronic monitoring tool that incorporates facial recog-
    10  nition, gait, or emotion recognition technology;
    11    (x)  discipline  or  terminate the employment of an employee solely on
    12  the basis of their refusal to comply to the collection of their data  by
    13  an electronic monitoring tool; or
    14    (xi) where employees have union representation, refuse to bargain over
    15  the use of electronic monitoring tools.
    16    (b)  An  employer  shall  not  rely  solely on employee data collected
    17  through electronic monitoring  when  making  hiring,  promotion,  termi-
    18  nation, disciplinary, or compensation decisions.
    19    (i) An employer shall conduct its own assessment before making hiring,
    20  promotion, termination, or disciplinary decisions independent of employ-
    21  ee  data  gathered  through electronic monitoring. This includes corrob-
    22  orating the electronic monitoring employee data by other means,  includ-
    23  ing a supervisor's documentation or managerial documentation.
    24    (ii) If an employer cannot independently corroborate the employee data
    25  gathered through electronic monitoring, the employer shall not rely upon
    26  that  data  in  making  hiring,  promotion, termination, or disciplinary
    27  decisions.
    28    (c) The information and judgments involved in  an  employer's  corrob-
    29  oration  or  use  of  electronic monitoring data shall be documented and
    30  communicated to affected  employees  prior  to  the  hiring,  promotion,
    31  termination, or disciplinary decision going into effect.
    32    (d)  Data  that provides evidence of criminal activity, when independ-
    33  ently corroborated by the employer, is exempt from this subdivision.
    34    4. It shall be unlawful for an employer or an employment agency to use
    35  an automated employment decision tool for an employment decision unless:
    36    (a) such tool has been the subject of a bias audit conducted  no  more
    37  than one year prior to the use of such tool; and
    38    (b)  a  summary  of  the results of the most recent bias audit of such
    39  tool as well as the distribution date of the tool to  which  such  audit
    40  applies  has been made publicly available on the website of the employer
    41  or employment agency prior to the use of such tool.
    42    5. (a) Any employer  or  employment  agency  that  uses  an  automated
    43  employment  decision tool to screen or otherwise evaluate an employee or
    44  a candidate who has applied for a position for  an  employment  decision
    45  shall notify each such employee or candidate who resides in the state of
    46  the following:
    47    (i)  that  an  automated  employment  decision  tool  will  be used in
    48  connection with the assessment or evaluation of such employee or  candi-
    49  date  who  resides  in the state. Such notice shall be made no less than
    50  ten business days before such use and allow a candidate  to  request  an
    51  alternative selection process or accommodation that does not involve the
    52  use of an automated employment decision tool;
    53    (ii)  the  job  qualifications and characteristics that such automated
    54  employment decision tool will use in the assessment of such candidate or
    55  employee, and any outputs the tool will produce as an evaluation of such

        S. 7623                             6

     1  candidate or employee. Such notice shall be made no less than ten  busi-
     2  ness days before such use; and
     3    (iii) if not disclosed on the employer or employment agency's website,
     4  information  about  the type of data collected for the automated employ-
     5  ment decision tool, the source of such data and the employer or  employ-
     6  ment  agency's  data  retention  policy  shall be available upon written
     7  request by a candidate or employee. Such information shall  be  provided
     8  within  thirty days of the written request. Information pursuant to this
     9  section shall not be  disclosed  where  such  disclosure  would  violate
    10  local, state, or federal law, or interfere with a law enforcement inves-
    11  tigation.
    12    (b)  An  employer shall not require employees or candidates that apply
    13  for a position of employment to consent to the use of automated  employ-
    14  ment  decision  tool in an employment decision in order to be considered
    15  for an employment decision, nor shall an employer discipline  or  disad-
    16  vantage  an  employee  or candidate for employment solely as a result of
    17  their request for accommodation.
    18    6. (a) Notwithstanding the provisions  of  subdivision  four  of  this
    19  section,  an  employer  shall not, alone or in conjunction with an elec-
    20  tronic monitoring tool, use an automated employment decision tool:
    21    (i) in such a manner that results in a violation of labor  or  employ-
    22  ment law;
    23    (ii)  in  such a manner as to unduly or extremely intensify the condi-
    24  tions of work or to harm the health and safety of  employees,  including
    25  by setting unreasonable productivity quotas;
    26    (iii)  to  make predictions about an employee or candidate for employ-
    27  ment's behavior, beliefs, intentions, personality, emotional  state,  or
    28  other  characteristic  or behavior unrelated to the employee's essential
    29  job functions;
    30    (iv) to predict, interfere with, restrain, or coerce employees  engag-
    31  ing in activity protected under labor and employment law;
    32    (v)  to  implement  a  dynamic wage-setting system that pays employees
    33  different wages for the same work;
    34    (vi) to subtract from an employee's wages time spent exercising  their
    35  legal rights; or
    36    (vii)  that  draws on facial recognition, gait, or emotion recognition
    37  technologies.
    38    (b) An employer shall not rely solely  on  output  from  an  automated
    39  employment  decision  tool  when  making hiring, promotion, termination,
    40  disciplinary, or compensation decisions.
    41    (i) An employer shall conduct  its  own  evaluation  of  the  employee
    42  before  making a hiring, promotion, termination, disciplinary or compen-
    43  sation decision, independent of  the  output  used  from  the  automated
    44  employment  decision  tool.  This includes establishing meaningful human
    45  oversight by a designated internal reviewer to corroborate the automated
    46  employment decision tool output by other means, including supervisory or
    47  managerial  documentation,  personnel  files,  or  the  consultation  of
    48  coworkers.
    49    (ii)  Meaningful human oversight requires that the designated internal
    50  reviewer meet the following conditions:
    51    (A) The designated internal reviewer is granted sufficient  authority,
    52  discretion,  resources, and time to corroborate the automated employment
    53  decision tool output.
    54    (B) The designated internal reviewer has sufficient expertise  in  the
    55  operation of similar systems and a sufficient understanding of the auto-

        S. 7623                             7

     1  mated  employment  decision tool in question to interpret its outputs as
     2  well as results of relevant bias audits.
     3    (C) The designated internal review has education, training, or experi-
     4  ence sufficient to allow the reviewer to make a well-informed decision.
     5    (iii)  When  an employer cannot corroborate the output produced by the
     6  automated employment decision tool, the employer shall not rely  on  the
     7  system  to  make  the  hiring,  promotion, termination, disciplinary, or
     8  compensation decision.
     9    (iv) When an employer can corroborate the automated  employment  deci-
    10  sion tool output and makes the hiring, promotion, termination, discipli-
    11  nary, or compensation decision based on that output, a notice containing
    12  the following information shall be given to affected employees:
    13    (A)  the specific decision for which the automated employment decision
    14  tool was used;
    15    (B) any information or judgments used in  addition  to  the  automated
    16  employment decision tool output in making the decision;
    17    (C)  the specific employee data that the automated employment decision
    18  tool used;
    19    (D) the individual,  vendor,  or  entity  who  created  the  automated
    20  employment decision tool;
    21    (E) the individual or entity that executed and interpreted the results
    22  of the automated employment decision tool; and
    23    (F) a copy of any bias audits regarding the automated employment deci-
    24  sion tool in question.
    25    (v)  When  an  employer  uses  corroborated  output  from an automated
    26  employment decision tool  to  make  a  hiring,  promotion,  termination,
    27  disciplinary,  or  compensation  decision,  notice shall be given to the
    28  affected worker prior to the implementation of that decision.
    29    (c) An employer may not, where employees  have  union  representation,
    30  refuse to bargain over the use of automated employment decision tools.
    31    7.  (a)  Any  person who violates any provision of this section or any
    32  rule promulgated pursuant to this section is liable for a civil  penalty
    33  of  not  more  than  five hundred dollars for a first violation and each
    34  additional violation occurring on the same day as the  first  violation,
    35  and  not  less  than  five hundred dollars nor more than fifteen hundred
    36  dollars for each subsequent violation.
    37    (b) Each day on which  an  electronic  monitoring  tool  or  automated
    38  employment decision tool is used in violation of this section shall give
    39  rise  to a separate violation of subdivisions two, three, four, and five
    40  of this section.
    41    (c) Failure to provide any notice to a candidate  or  an  employee  in
    42  violation  of  subdivision five of this section shall constitute a sepa-
    43  rate violation.
    44    (d) A proceeding to recover  any  civil  penalty  authorized  by  this
    45  section  is  returnable  to  any  tribunal established within any agency
    46  designated to conduct such proceedings,  or,  in  a  city  of  over  one
    47  million  in  population,  such  hearing may be held by a hearing officer
    48  employed within the office of administrative trials and hearings.
    49    8. The attorney general  or  such  other  persons  designated  by  the
    50  department  may  initiate  in  any  court  of competent jurisdiction any
    51  action or proceeding that may be appropriate or necessary for correction
    52  of any violation of this section, including  mandating  compliance  with
    53  the  provisions of this section or such other relief as may be appropri-
    54  ate.
    55    9. The provisions of this section shall not be construed as  to  limit
    56  any  right  of any employee or candidate for employment to bring a civil

        S. 7623                             8

     1  action in any court of competent jurisdiction, or to limit the authority
     2  of the division of human rights to enforce  the  provisions  of  article
     3  fifteen of the executive law.
     4    §  2. Section 52-c of the civil rights law, as added by chapter 583 of
     5  the laws of 2021, is renumbered section 52-e.
     6    § 3. This act shall take effect on the one hundred eightieth day after
     7  it shall have become a law.