S T A T E   O F   N E W   Y O R K
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                                  1565

                       2011-2012 Regular Sessions

                          I N  A S S E M B L Y

                            January 10, 2011
                               ___________

Introduced  by M. of A. TEDISCO, BURLING, CROUCH, RABBITT -- Multi-Spon-
  sored by -- M. of A.  AMEDORE, BARCLAY, BUTLER, CALHOUN, CONTE, FINCH,
  FITZPATRICK, GIGLIO, HAYES, JORDAN, KOLB, McDONOUGH, J. MILLER,  OAKS,
  RAIA,  REILICH, SALADINO, SAYWARD, THIELE -- read once and referred to
  the Committee on Codes

AN ACT to amend the  social  services  law,  in  relation  to  requiring
  employers and information technology employees to report child pornog-
  raphy to the state police

  THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section 1. The social services law is amended by adding a new  section
413-a to read as follows:
  S  413-A.  REPORTING OF CHILD PORNOGRAPHY BY EMPLOYERS AND INFORMATION
TECHNOLOGY EMPLOYEES TO THE STATE POLICE. 1. REPORTING.  NOTWITHSTANDING
ANY OTHER PROVISION OF LAW, ANY EMPLOYER, ANY COMPUTER ENGINEER, COMPUT-
ER TECHNICIAN, MANAGEMENT INFORMATION ENGINEER OR MANAGEMENT INFORMATION
TECHNICIAN WHO HAS KNOWLEDGE OF, OR OBSERVES, WITHIN THE SCOPE OF HIS OR
HER PROFESSIONAL  CAPACITY  OR  EMPLOYMENT,  ANY  COMPUTER  IMAGE  WHICH
DEPICTS  A  CHILD  WHOM  THE  EMPLOYER,  ENGINEER OR TECHNICIAN KNOWS OR
REASONABLY SHOULD KNOW, TO BE UNDER THE AGE  OF  SEVENTEEN,  WHERE  SUCH
CHILD IS:
  (A)  ACTUALLY,  OR  BY SIMULATION, ENGAGED IN ANY ACT OF SEXUAL INTER-
COURSE WITH ANY PERSON OR ANIMAL;
  (B) ACTUALLY, OR BY SIMULATION, ENGAGED IN ANY ACT OF  SEXUAL  CONTACT
INVOLVING  THE  MOUTH, ANUS OR SEXUAL ORGANS OF THE CHILD AND THE MOUTH,
ANUS OR SEXUAL ORGANS OF ANOTHER PERSON OR ANIMAL;
  (C) ACTUALLY, OR BY SIMULATION, ENGAGED IN ANY ACT OF MASTURBATION;
  (D) ACTUALLY, OR BY SIMULATION, PORTRAYED AS BEING THE OBJECT  OF,  OR
OTHERWISE  ENGAGED  IN  ANY ACT OF LEWD FONDLING, TOUCHING OR CARESSING,
INVOLVING ANOTHER PERSON OR ANIMAL;

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD02193-01-1

              

A. 1565                             2

  (E) ACTUALLY, OR BY SIMULATION, ENGAGED IN ANY  ACT  OF  EXCRETION  OR
URINATION WITHIN A SEXUAL CONTEXT; OR
  (F)  ACTUALLY,  OR  BY  SIMULATION,  PORTRAYED  OR  DEPICTED AS BOUND,
FETTERED, OR SUBJECT TO SADISTIC, MASOCHISTIC OR  SADOMASOCHISTIC  ABUSE
IN ANY SEXUAL CONTACT;
SHALL    REPORT SUCH INSTANCES TO THE STATE POLICE IMMEDIATELY OR WITHIN
TWENTY-FOUR HOURS OF DISCOVERY.
  2. FAILURE TO REPORT. WILLFUL FAILURE TO REPORT SHALL BE PUNISHABLE BY
A CLASS A MISDEMEANOR.
  3. FALSELY REPORTING. ANY EMPLOYER, COMPUTER ENGINEER, COMPUTER  TECH-
NICIAN,  MANAGEMENT INFORMATION ENGINEER OR MANAGEMENT INFORMATION TECH-
NICIAN WHO FALSELY REPORTS A CASE OF CHILD PORNOGRAPHY SHALL BE  SUBJECT
TO THE PENALTIES CONTAINED UNDER SECTION 240.50 OF THE PENAL LAW.
  4.  IMMUNITY FROM LIABILITY. ANY EMPLOYER, COMPUTER ENGINEER, COMPUTER
TECHNICIAN, MANAGEMENT INFORMATION ENGINEER  OR  MANAGEMENT  INFORMATION
TECHNICIAN  PARTICIPATING IN GOOD FAITH, PURSUANT TO THIS SECTION, SHALL
HAVE IMMUNITY FROM ANY LIABILITY, CIVIL OR CRIMINAL, THAT  MIGHT  OTHER-
WISE  RESULT  BY REASON OF SUCH ACTION. FOR THE PURPOSES OF ANY CIVIL OR
CRIMINAL PROCEEDING, THE GOOD FAITH OF ANY  PERSON  REQUIRED  TO  REPORT
SUCH  CASES  SHALL  BE  PRESUMED,  PROVIDED  SUCH  PERSON  WAS ACTING IN
DISCHARGE OF THEIR DUTIES AND WITHIN THE SCOPE OR THEIR EMPLOYMENT,  AND
THAT  SUCH LIABILITY DID NOT RESULT FROM THE WILLFUL MISCONDUCT OR GROSS
NEGLIGENCE OF SUCH PERSON, OFFICIAL OR INSTITUTION.
  5. RETALIATORY PERSONNEL ACTION BY  EMPLOYERS;  PROHIBITIONS.  (A)  AN
EMPLOYER  SHALL NOT TAKE RETALIATORY PERSONNEL ACTION AGAINST AN EMPLOY-
EE, WHO PURSUANT TO THIS SECTION, REPORTS INSTANCES OF CHILD PORNOGRAPHY
TO THE STATE POLICE.
  (B)(I) AN EMPLOYEE WHO HAS BEEN THE SUBJECT OF A RETALIATORY PERSONNEL
ACTION IN VIOLATION OF THIS SUBDIVISION MAY INSTITUTE A CIVIL ACTION  IN
A  COURT  OF COMPETENT JURISDICTION FOR RELIEF AS SET FORTH IN PARAGRAPH
(C) OF THIS SUBDIVISION WITHIN ONE YEAR AFTER  THE  ALLEGED  RETALIATORY
PERSONNEL ACTION WAS TAKEN.
  (II)  ANY  ACTION AUTHORIZED BY THIS SUBDIVISION MAY BE BROUGHT IN THE
COUNTY IN WHICH THE ALLEGED RETALIATORY PERSONNEL  ACTION  OCCURRED,  IN
THE  COUNTY  IN WHICH THE COMPLAINANT RESIDES, OR IN THE COUNTY IN WHICH
THE EMPLOYER HAS ITS PRINCIPAL PLACE OF BUSINESS.
  (III) IT SHALL BE A DEFENSE TO ANY ACTION  BROUGHT  PURSUANT  TO  THIS
SUBDIVISION  THAT THE PERSONNEL ACTION WAS PREDICATED UPON GROUNDS OTHER
THAN THE EMPLOYEE'S EXERCISE OF ANY RIGHTS PROTECTED  BY  THIS  SUBDIVI-
SION.
  (C)  IN  ANY ACTION BROUGHT PURSUANT TO PARAGRAPH (B) OF THIS SUBDIVI-
SION, THE COURT MAY ORDER RELIEF AS FOLLOWS:
  (I) AN INJUNCTION TO RESTRAIN CONTINUED VIOLATION OF THIS SECTION;
  (II) THE REINSTATEMENT OF THE  EMPLOYEE  TO  THE  SAME  POSITION  HELD
BEFORE THE RETALIATORY PERSONNEL ACTION, OR TO AN EQUIVALENT POSITION;
  (III) THE REINSTATEMENT OF FULL FRINGE BENEFITS AND SENIORITY RIGHTS;
  (IV) THE COMPENSATION FOR LOST WAGES, BENEFITS AND OTHER REMUNERATION;
AND
  (V)  THE  PAYMENT  BY THE EMPLOYER OF REASONABLE COSTS, DISBURSEMENTS,
AND ATTORNEY'S FEES.
  (D) A COURT, IN ITS DISCRETION, MAY ALSO ORDER THAT REASONABLE  ATTOR-
NEYS'  FEES  AND COURT COSTS AND DISBURSEMENTS BE AWARDED TO AN EMPLOYER
IF THE COURT DETERMINES THAT AN ACTION BROUGHT BY AN EMPLOYEE UNDER THIS
SUBDIVISION WAS WITHOUT BASIS IN LAW OR IN FACT.
  (E) NOTHING IN THIS  SUBDIVISION  SHALL  BE  DEEMED  TO  DIMINISH  THE
RIGHTS,  PRIVILEGES,  OR REMEDIES OF ANY EMPLOYEE UNDER ANY OTHER LAW OR

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REGULATION OR UNDER ANY COLLECTIVE BARGAINING  AGREEMENT  OR  EMPLOYMENT
CONTRACT;  EXCEPT  THAT  THE INSTITUTION OF AN ACTION IN ACCORDANCE WITH
THIS SUBDIVISION SHALL BE DEEMED A WAIVER OF  THE  RIGHTS  AND  REMEDIES
AVAILABLE  UNDER  ANY  OTHER  CONTRACT, COLLECTIVE BARGAINING AGREEMENT,
LAW, RULE OR REGULATION OR UNDER THE COMMON LAW.
  6. DEFINITIONS. FOR PURPOSES  OF  THIS  SECTION,  UNLESS  THE  CONTEXT
SPECIFICALLY INDICATES OTHERWISE:
  (A) "EMPLOYEE" MEANS AN INDIVIDUAL WHO PERFORMS SERVICES FOR AND UNDER
THE  CONTROL  AND  DIRECTION OF AN EMPLOYER FOR WAGES OR OTHER REMUNERA-
TION.
  (B) "EMPLOYER"  MEANS  ANY  PERSON,  FIRM,  PARTNERSHIP,  INSTITUTION,
CORPORATION, OR ASSOCIATION THAT EMPLOYS ONE OR MORE EMPLOYEES.
  (C)  "RETALIATORY PERSONNEL ACTION" MEANS THE DISCHARGE, SUSPENSION OR
DEMOTION OF AN  EMPLOYEE,  OR  OTHER  ADVERSE  EMPLOYMENT  ACTION  TAKEN
AGAINST AN EMPLOYEE IN THE TERMS AND CONDITIONS OF EMPLOYMENT.
  S  2.  This  act shall take effect on the ninetieth day after it shall
have become a law.