S T A T E O F N E W Y O R K
________________________________________________________________________
8070--B
2011-2012 Regular Sessions
I N A S S E M B L Y
May 27, 2011
___________
Introduced by M. of A. STEVENSON, DINOWITZ, COLTON, JAFFEE, M. MILLER,
P. RIVERA, CRESPO -- Multi-Sponsored by -- M. of A. CERETTO, CROUCH,
GIBSON, HIKIND, MILLMAN, WRIGHT -- read once and referred to the
Committee on Consumer Affairs and Protection -- recommitted to the
Committee on Consumer Affairs and Protection in accordance with Assem-
bly Rule 3, sec. 2 -- committee discharged, bill amended, ordered
reprinted as amended and recommitted to said committee -- reported and
referred to the Committee on Codes -- committee discharged, bill
amended, ordered reprinted as amended and recommitted to said commit-
tee
AN ACT to amend the general business law and the labor law, in relation
to the use of credit history for employment purposes
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
Section 1. Short title. This act shall be known and may be cited as
the "credit privacy in employment act".
S 2. Paragraph 3 of subdivision (a) of section 380-b of the general
business law, as amended by chapter 797 of the laws of 1984, is amended
to read as follows:
(3) To a person whom it has reason to believe intends to use the
information (i) in connection with a credit transaction involving the
consumer on whom the information is to be furnished and involving the
extension of credit to, or review or collection of an account of, the
consumer, or (ii) for employment purposes, SUBJECT TO THE PROVISIONS OF
SECTION THREE HUNDRED EIGHTY-U OF THIS ARTICLE or (iii) in connection
with the underwriting of insurance involving the consumer, or (iv) in
connection with a determination of the consumer's eligibility for a
license or other benefit granted by a governmental instrumentality
required by law to consider an applicant's financial responsibility or
status, or (v) to a person in connection with a business transaction
involving the consumer where the user has a legitimate business need for
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD11204-04-2
A. 8070--B 2
such information, or (vi) in connection with the rental or lease of a
residence.
S 3. Section 380-m of the general business law, as amended by chapter
279 of the laws of 2008, is amended to read as follows:
S 380-m. Civil liability for negligent noncompliance. Any consumer
reporting agency or user of information who or which is negligent in
failing to comply with any requirement imposed under this article, other
than a violation of section three hundred eighty-t OR THREE HUNDRED
EIGHTY-U of this article, with respect to any consumer is liable to that
consumer in an amount equal to the sum of:
(a) Any actual damages sustained by the consumer as a result of the
failure;
(b) In the case of any successful action to enforce any liability
under this section, the costs of the action together with reasonable
attorney's fees as determined by the court.
S 4. Section 380-u of the general business law, as relettered by chap-
ter 63 of the laws of 2006, is renumbered section 380-v and a new
section 380-u is added to read as follows:
S 380-U. USE OF CREDIT HISTORY FOR EMPLOYMENT PURPOSES. (A) NO
EMPLOYER, EMPLOYMENT AGENCY, OR LICENSING AGENCY, OR AGENT, REPRESEN-
TATIVE OR DESIGNEE THEREOF, SHALL:
(1) USE INFORMATION IN THE CREDIT HISTORY OF A JOB APPLICANT OR
EMPLOYEE IN CONNECTION WITH OR AS A CRITERION FOR EMPLOYMENT DECISIONS
RELATED TO HIRING, TERMINATION, PROMOTION, DEMOTION, DISCIPLINE, COMPEN-
SATION, OR THE TERMS, CONDITIONS OR PRIVILEGES OF EMPLOYMENT; OR
(2) REQUEST THE JOB APPLICANT'S OR EMPLOYEE'S CREDIT HISTORY FOR SUCH
PURPOSE.
(B) THE PROVISIONS OF SUBDIVISION (A) OF THIS SECTION SHALL NOT APPLY
TO THE EMPLOYERS OF LAW ENFORCEMENT OFFICERS OR IF THE EMPLOYER IS
REQUIRED BY STATE OR FEDERAL LAW TO USE INDIVIDUAL CREDIT HISTORY FOR
EMPLOYMENT PURPOSES.
(C) AS USED IN THIS SECTION, "CREDIT HISTORY" MEANS ANY WRITTEN OR
OTHER COMMUNICATION OF ANY INFORMATION BY A CONSUMER REPORTING AGENCY
THAT BEARS ON A CONSUMER'S CREDIT WORTHINESS, CREDIT STANDING OR CREDIT
CAPACITY.
(D) (1) WHEREVER THERE SHALL BE A VIOLATION OF THIS SECTION, AN APPLI-
CATION MAY BE MADE BY THE ATTORNEY GENERAL IN THE NAME OF THE PEOPLE OF
THE STATE OF NEW YORK TO A COURT OR JUSTICE HAVING JURISDICTION BY A
SPECIAL PROCEEDING TO ISSUE AN INJUNCTION, AND UPON NOTICE TO THE
DEFENDANT OF NOT LESS THAN FIVE DAYS, TO ENJOIN OR RESTRAIN THE CONTIN-
UANCE OF SUCH VIOLATION; AND IF IT SHALL APPEAR TO THE SATISFACTION OF
THE COURT OR JUSTICE THAT THE DEFENDANT HAS, IN FACT, VIOLATED THIS
SECTION, AN INJUNCTION MAY BE ISSUED BY SUCH COURT OR JUSTICE, ENJOINING
AND RESTRAINING ANY FURTHER VIOLATION, WITHOUT REQUIRING PROOF THAT ANY
PERSON HAS, IN FACT, BEEN INJURED OR DAMAGED THEREBY. IN ANY SUCH
PROCEEDING, THE COURT MAY MAKE ALLOWANCES TO THE ATTORNEY GENERAL AS
PROVIDED IN PARAGRAPH SIX OF SUBDIVISION (A) OF SECTION EIGHTY-THREE
HUNDRED THREE OF THE CIVIL PRACTICE LAW AND RULES, AND DIRECT RESTITU-
TION. WHENEVER THE COURT SHALL DETERMINE THAT A VIOLATION OF THIS
SECTION HAS OCCURRED, THE COURT MAY IMPOSE A CIVIL PENALTY OF NOT MORE
THAN TWO THOUSAND DOLLARS FOR EACH VIOLATION. IN CONNECTION WITH ANY
SUCH PROPOSED APPLICATION, THE ATTORNEY GENERAL IS AUTHORIZED TO TAKE
PROOF AND MAKE A DETERMINATION OF THE RELEVANT FACTS AND TO ISSUE
SUBPOENAS IN ACCORDANCE WITH THE CIVIL PRACTICE LAW AND RULES.
(2) ANY PERSON INJURED BY A VIOLATION OF THIS SECTION MAY BRING AN
ACTION IN HIS OR HER OWN NAME TO ENJOIN SUCH UNLAWFUL ACT OR PRACTICE,
A. 8070--B 3
AN ACTION TO RECOVER HIS OR HER ACTUAL DAMAGES OR THREE THOUSAND FIVE
HUNDRED DOLLARS, WHICHEVER IS GREATER, OR BOTH SUCH ACTIONS. THE COURT
MAY, IN ITS DISCRETION, INCREASE THE AWARD OF DAMAGES TO AN AMOUNT NOT
TO EXCEED THREE TIMES THE ACTUAL DAMAGES UP TO TEN THOUSAND DOLLARS, IF
THE COURT FINDS THE DEFENDANT WILLFULLY OR KNOWINGLY VIOLATED THIS ARTI-
CLE. IN THE CASE OF ANY SUCCESSFUL ACTION TO ENFORCE THE FOREGOING
LIABILITY, THE COURT MAY AWARD THE COSTS OF THE ACTION TOGETHER WITH
REASONABLE ATTORNEY'S FEES.
(E) A CONSUMER MAY FILE A COMPLAINT ALLEGING A VIOLATION OF THE
PROVISIONS OF THIS SUBDIVISION WITH THE DEPARTMENT OF LABOR PURSUANT TO
SECTION TWO HUNDRED NINETEEN-D OF THE LABOR LAW.
S 5. Subdivision (d) of section 380-c of the general business law, as
added by chapter 867 of the laws of 1977, is amended to read as follows:
(d) If a person applying for credit, insurance, or employment refuses
to authorize the procurement or preparation of an investigative consumer
report, the prospective creditor, insurer or employer may decline to
grant credit, insurance or employment on the grounds that the applicant
refused to execute such authorization; PROVIDED, HOWEVER, THAT AN
EMPLOYER SHALL NOT REFUSE TO HIRE A PROSPECTIVE EMPLOYEE ON THE GROUNDS
THAT THE PROSPECTIVE EMPLOYEE REFUSES TO AUTHORIZE THE PROCUREMENT OF
INFORMATION TO WHICH THE EMPLOYER IS NOT ENTITLED PURSUANT TO SECTION
THREE HUNDRED EIGHTY-U OF THIS ARTICLE.
S 6. Section 380-i of the general business law is amended by adding a
new subdivision (d) to read as follows:
(D) IN USING A CONSUMER REPORT OR INVESTIGATIVE CONSUMER REPORT, WHERE
THE REPORT CONTAINS INFORMATION BEARING ON THE CONSUMER'S CREDITWORTHI-
NESS, CREDIT STANDING OR CREDIT CAPACITY, AN EMPLOYER, OR AGENT, REPRE-
SENTATIVE OR DESIGNEE THEREOF BEFORE TAKING ANY ADVERSE ACTION BASED IN
WHOLE OR PART ON THE REPORT, SHALL PROVIDE TO THE JOB APPLICANT OR
EMPLOYEE:
(1) THE NAME, ADDRESS, AND TELEPHONE NUMBER OF THE CONSUMER REPORTING
AGENCY PROVIDING THE REPORT;
(2) A DESCRIPTION OF THE CONSUMER'S RIGHTS UNDER SECTION THREE HUNDRED
EIGHTY-B OF THIS ARTICLE; AND
(3) A REASONABLE OPPORTUNITY TO RESPOND TO ANY INFORMATION IN THE
REPORT THAT IS DISPUTED BY THE CONSUMER.
S 7. The labor law is amended by adding a new section 219-d to read as
follows:
S 219-D. FILING OF COMPLAINT. ANY EMPLOYEE OR PROSPECTIVE EMPLOYEE
MAY FILE WITH THE COMMISSIONER A COMPLAINT REGARDING AN ALLEGED
VIOLATION OF SECTION THREE HUNDRED EIGHTY-U OF THE GENERAL BUSINESS LAW
FOR AN INVESTIGATION OF SUCH COMPLAINT AND STATEMENT SETTING THE APPRO-
PRIATE REMEDY, IF ANY.
S 8. This act shall take effect on the one hundred eightieth day after
it shall have become a law.