Senate Bill S5653B

                            
 
                     S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   5653
 
                        2017-2018 Regular Sessions
 
                             I N  S E N A T E
 
                              April 24, 2017
                                ___________
 
 Introduced  by  Sens. KLEIN, CARLUCCI -- read twice and ordered printed,
   and when  printed  to  be  committed  to  the  Committee  on  Consumer
   Protection
 
 AN  ACT to amend the general business law and the labor law, in relation
   to the use of consumer credit reports for employment decisions

   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".
   § 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-V 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
 such  information,  or  (vi) in connection with the rental or lease of a
 residence.
   § 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:
   §  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

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

                                                            LBD03783-01-7

 S. 5653                             2
 
 than  a  violation  of  section  three hundred eighty-t OR THREE HUNDRED
 EIGHTY-V 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.
   § 4. Section 380-v of the general business law, as relettered by chap-
 ter 441 of the laws of 2014, is  relettered  section  380-w  and  a  new
 section 380-v is added to read as follows:
   § 380-V. USE OF CONSUMER CREDIT REPORTS FOR EMPLOYMENT DECISIONS.  (A)
 NO EMPLOYER, EMPLOYMENT AGENCY, OR LICENSING AGENCY, OR AGENT, REPRESEN-
 TATIVE OR DESIGNEE THEREOF, SHALL:
   (1)  USE  INFORMATION IN THE CONSUMER CREDIT REPORT OF A JOB APPLICANT
 OR EMPLOYEE IN CONNECTION WITH OR AS A CRITERION  FOR  EMPLOYMENT  DECI-
 SIONS  RELATED  TO HIRING, TERMINATION, PROMOTION, DEMOTION, DISCIPLINE,
 COMPENSATION, OR THE TERMS, CONDITIONS OR PRIVILEGES OF EMPLOYMENT;
   (2) REQUEST THE JOB APPLICANT'S OR EMPLOYEE'S CONSUMER  CREDIT  REPORT
 FOR SUCH PURPOSE; OR
   (3)  REFUSE  TO  HIRE  A  JOB  APPLICANT  ON THE GROUND THAT HE OR SHE
 REFUSES TO GIVE CONSENT FOR THE OBTAINMENT OF HIS OR HER CONSUMER CREDIT
 REPORT.
   (B) THE PROVISIONS OF SUBDIVISION (A) OF THIS SECTION SHALL NOT  APPLY
 IF  THE  EMPLOYER  IS REQUIRED BY STATE OR FEDERAL LAW TO USE A CONSUMER
 CREDIT REPORT FOR EMPLOYMENT DECISIONS.
   (C) (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,
 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.

 S. 5653                             3
 
   (D) 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.
   §  5. 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 CREDIT REPORT ANY EMPLOYER, EMPLOYMENT AGENCY,
 LICENSING AGENCY, AGENT,  REPRESENTATIVE  OR  DESIGNEE  THEREOF,  BEFORE
 TAKING  ANY  ADVERSE ACTION BASED IN WHOLE OR PART ON SUCH 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.
   § 6. The labor law is amended by adding a new section 219-d to read as
 follows:
   § 219-D. FILING OF COMPLAINT. ANY JOB APPLICANT OR EMPLOYEE  MAY  FILE
 WITH  THE  COMMISSIONER  A  COMPLAINT  REGARDING AN ALLEGED VIOLATION OF
 SECTION THREE HUNDRED EIGHTY-V OF THE GENERAL BUSINESS LAW FOR AN INVES-
 TIGATION OF SUCH COMPLAINT AND STATEMENT SETTING THE APPROPRIATE REMEDY,
 IF ANY.
   § 7. This act shall take effect on the one hundred twentieth day after
 it shall have become a law.

                            
 
                     S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                  5653--A
 
                        2017-2018 Regular Sessions
 
                             I N  S E N A T E
 
                              April 24, 2017
                                ___________
 
 Introduced  by  Sens. KLEIN, CARLUCCI -- read twice and ordered printed,
   and when  printed  to  be  committed  to  the  Committee  on  Consumer
   Protection  -- reported favorably from said committee and committed to
   the Committee on Rules -- committee discharged, bill amended,  ordered
   reprinted as amended and recommitted to said committee

 AN  ACT to amend the executive law, in relation to prohibiting discrimi-
   nation in employment and licensing based on consumer credit history
 
   THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
 BLY, DO ENACT AS FOLLOWS:
 
   Section 1. Section 292 of the executive law is amended by adding a new
 subdivision 35 to read as follows:
   35.  THE  TERM  "CONSUMER CREDIT HISTORY" MEANS AN INDIVIDUAL'S CREDIT
 WORTHINESS, CREDIT STANDING, CREDIT  CAPACITY  OR  PAYMENT  HISTORY,  AS
 INDICATED BY:
   (A) A CONSUMER CREDIT REPORT;
   (B) CREDIT SCORE; OR
   (C)  INFORMATION  AN  EMPLOYER  OBTAINS  DIRECTLY  FROM THE INDIVIDUAL
 REGARDING (1) DETAILS ABOUT CREDIT ACCOUNTS, INCLUDING THE  INDIVIDUAL'S
 NUMBER  OF  CREDIT ACCOUNTS, LATE OR MISSED PAYMENTS, CHARGED-OFF DEBTS,
 ITEMS IN COLLECTIONS, CREDIT LIMIT OR PRIOR CREDIT REPORT INQUIRIES,  OR
 (2) BANKRUPTCIES, JUDGMENTS OR LIENS.
   A  CONSUMER  CREDIT REPORT SHALL INCLUDE ANY WRITTEN OR OTHER COMMUNI-
 CATION OF ANY INFORMATION BY A CONSUMER REPORTING AGENCY THAT BEARS ON A
 CONSUMER'S CREDITWORTHINESS, CREDIT STANDING, CREDIT CAPACITY OR  CREDIT
 HISTORY.
   §  2.  Section 296-a of the executive law is amended by adding two new
 subdivisions 13 and 14 to read as follows:
   13. A. EXCEPT AS PROVIDED IN THIS SUBDIVISION, IT SHALL BE AN UNLAWFUL
 DISCRIMINATORY PRACTICE FOR AN EMPLOYER, LABOR ORGANIZATION,  EMPLOYMENT
 AGENCY OR ANY AGENT THEREOF TO REQUEST OR TO USE FOR EMPLOYMENT PURPOSES
 THE  CONSUMER CREDIT HISTORY OF AN APPLICANT FOR EMPLOYMENT OR EMPLOYEE,
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
              

                                                            LBD03783-02-7

 S. 5653--A                          2
 
 OR OTHERWISE DISCRIMINATE AGAINST AN APPLICANT OR EMPLOYEE  WITH  REGARD
 TO  HIRING,  COMPENSATION,    OR  THE TERMS, CONDITIONS OR PRIVILEGES OF
 EMPLOYMENT BASED ON THE CONSUMER CREDIT  HISTORY  OF  THE  APPLICANT  OR
 EMPLOYEE.
   B. PARAGRAPH A OF THIS SUBDIVISION SHALL NOT APPLY TO:
   (1) AN EMPLOYER, OR AGENT THEREOF, THAT IS REQUIRED BY STATE OR FEDER-
 AL LAW OR REGULATIONS OR BY A SELF-REGULATORY ORGANIZATION AS DEFINED IN
 SECTION  3(A)(26)  OF THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED TO
 USE AN INDIVIDUAL'S CONSUMER CREDIT HISTORY FOR EMPLOYMENT PURPOSES;
   (2) PERSONS APPLYING FOR POSITIONS AS OR EMPLOYED:
   (A) AS POLICE OFFICERS OR PEACE OFFICERS, AS THOSE TERMS  ARE  DEFINED
 IN  SUBDIVISIONS  THIRTY-THREE  AND  THIRTY-FOUR  OF SECTION 1.20 OF THE
 CRIMINAL PROCEDURE LAW, RESPECTIVELY,  OR  IN  A  POSITION  WITH  A  LAW
 ENFORCEMENT OR INVESTIGATIVE FUNCTION IN A LAW ENFORCEMENT AGENCY;
   (B)  IN A POSITION IN WHICH AN EMPLOYEE IS REQUIRED TO BE BONDED UNDER
 LOCAL, STATE OR FEDERAL LAW;
   (C) IN A POSITION IN WHICH AN EMPLOYEE IS REQUIRED TO POSSES  SECURITY
 CLEARANCE UNDER FEDERAL LAW OR THE LAW OF ANY STATE;
   (D) IN A NON-CLERICAL POSITION HAVING REGULAR ACCESS TO TRADE SECRETS,
 INTELLIGENCE INFORMATION OR NATIONAL SECURITY INFORMATION;
   (E)  IN  A  POSITION:  (I) HAVING SIGNATORY AUTHORITY OVER THIRD PARTY
 FUNDS OR ASSETS VALUED AT TEN THOUSAND DOLLARS OR  MORE;  OR  (II)  THAT
 INVOLVES  A  FIDUCIARY RESPONSIBILITY TO THE EMPLOYER WITH THE AUTHORITY
 TO ENTER FINANCIAL AGREEMENTS VALUED AT TEN THOUSAND DOLLARS OR MORE  ON
 BEHALF OF THE EMPLOYER; OR
   (F) IN A POSITION WITH REGULAR DUTIES THAT ALLOW THE EMPLOYEE TO MODI-
 FY  DIGITAL SECURITY SYSTEMS ESTABLISHED TO PREVENT THE UNAUTHORIZED USE
 OF THE EMPLOYER'S OR CLIENT'S NETWORKS OR DATABASES.
   C. PARAGRAPH A OF THIS SUBDIVISION SHALL NOT BE  CONSTRUED  TO  AFFECT
 THE  OBLIGATIONS  OF  PERSONS REQUIRED BY STATE OR LOCAL LAW RELATING TO
 DISCLOSURES BY PUBLIC EMPLOYEES OF CONFLICTS OF INTEREST.
   D. AS USED IN THIS SUBDIVISION:
   (1)  THE  TERM  "INTELLIGENCE  INFORMATION"  MEANS  RECORDS  AND  DATA
 COMPILED  FOR THE PURPOSE OF CRIMINAL INVESTIGATION OR COUNTERTERRORISM,
 INCLUDING RECORDS AND DATA RELATING  TO  THE  ORDER  OR  SECURITY  OF  A
 CORRECTIONAL  FACILITY,  REPORTS  OF  INFORMANTS, INVESTIGATORS OR OTHER
 PERSONS, OR FROM ANY TYPE OF SURVEILLANCE ASSOCIATED WITH  AN  IDENTIFI-
 ABLE  INDIVIDUAL,  OR  INVESTIGATION  OR ANALYSIS OF POTENTIAL TERRORIST
 THREATS.
   (2) THE TERM  "NATIONAL  SECURITY  INFORMATION"  MEANS  ANY  KNOWLEDGE
 RELATING  TO  THE  NATIONAL  DEFENSE  OR FOREIGN RELATIONS OF THE UNITED
 STATES, REGARDLESS OF ITS PHYSICAL  FORM  OR  CHARACTERISTICS,  THAT  IS
 OWNED  BY,  PRODUCED  BY  OR  FOR, OR IS UNDER THE CONTROL OF THE UNITED
 STATES GOVERNMENT AND IS DEFINED AS SUCH BY THE UNITED STATES GOVERNMENT
 AND ITS AGENCIES AND DEPARTMENTS.
   (3) THE TERM "TRADE SECRETS" MEANS INFORMATION THAT: (A) DERIVES INDE-
 PENDENT ECONOMIC VALUE, ACTUAL OR POTENTIAL, FROM  NOT  BEING  GENERALLY
 KNOWN  TO,  AND NOT BEING READILY ASCERTAINABLE BY PROPER MEANS BY OTHER
 PERSONS WHO CAN OBTAIN ECONOMIC VALUE FROM ITS DISCLOSURE OR USE; (B) IS
 THE SUBJECT OF EFFORTS THAT ARE REASONABLE UNDER  THE  CIRCUMSTANCES  TO
 MAINTAIN ITS SECRECY; AND (C) CAN REASONABLY BE SAID TO BE THE END PROD-
 UCT OF SIGNIFICANT INNOVATION.
   THE  TERM "TRADE SECRETS" DOES NOT INCLUDE GENERAL PROPRIETARY COMPANY
 INFORMATION SUCH AS HANDBOOKS AND POLICIES. THE TERM "REGULAR ACCESS  TO
 TRADE SECRETS" DOES NOT INCLUDE ACCESS TO OR THE USE OF CLIENT, CUSTOMER
 OR MAILING LISTS.

 S. 5653--A                          3
 
   E.  NOTHING  IN  THIS  SUBDIVISION  SHALL  PRECLUDE  AN  EMPLOYER FROM
 REQUESTING OR RECEIVING CONSUMER CREDIT HISTORY INFORMATION PURSUANT  TO
 A LAWFUL SUBPOENA, COURT ORDER OR LAW ENFORCEMENT INVESTIGATION.
   14.  A.  EXCEPT AS OTHERWISE PROVIDED IN THIS SUBDIVISION, IT SHALL BE
 AN UNLAWFUL DISCRIMINATORY PRACTICE FOR ANY STATE OR MUNICIPAL AGENCY TO
 REQUEST  OR  USE  FOR  LICENSING  OR  PERMITTING  PURPOSES   INFORMATION
 CONTAINED  IN  THE  CONSUMER CREDIT HISTORY OF AN APPLICANT, LICENSEE OR
 PERMITTEE FOR LICENSING OR PERMITTING PURPOSES.
   B. PARAGRAPH A OF THIS  SUBDIVISION  SHALL  NOT  APPLY  TO  AN  AGENCY
 REQUIRED  BY  STATE OR FEDERAL LAW OR REGULATIONS TO USE AN INDIVIDUAL'S
 CONSUMER CREDIT HISTORY FOR LICENSING OR PERMITTING PURPOSES.
   C. PARAGRAPH A OF THIS SUBDIVISION SHALL NOT BE  CONSTRUED  TO  AFFECT
 THE  ABILITY OF AN AGENCY TO CONSIDER AN APPLICANT'S, LICENSEE'S, REGIS-
 TRANT'S OR PERMITTEE'S FAILURE TO PAY ANY TAX, FINE, PENALTY OR FEE  FOR
 WHICH  LIABILITY HAS BEEN ADMITTED BY THE PERSON LIABLE THEREFOR, OR FOR
 WHICH JUDGMENT HAS BEEN ENTERED BY A COURT OR ADMINISTRATIVE TRIBUNAL OF
 COMPETENT JURISDICTION, OR ANY TAX FOR WHICH  A  GOVERNMENT  AGENCY  HAS
 ISSUED A WARRANT, OR A LIEN OR LEVY ON PROPERTY.
   D.  NOTHING IN THIS SUBDIVISION SHALL PRECLUDE A LICENSING AGENCY FROM
 REQUESTING, RECEIVING, OR  USING  CONSUMER  CREDIT  HISTORY  INFORMATION
 OBTAINED  PURSUANT  TO A LAWFUL SUBPOENA, COURT ORDER OR LAW ENFORCEMENT
 INVESTIGATION.
   § 3. The division of human rights shall request information from state
 and local agencies and non-governmental employers  regarding  the  agen-
 cies' and employers' use of the exemptions established in subdivision 13
 of section 296-a of the executive law for purposes of hiring and employ-
 ment.  Within  two years of the effective date of this act, the division
 of human rights shall submit to the legislature a report concerning  the
 results  of  such  request  and  any relevant feedback from agencies and
 employers.
   § 4. This act shall take effect on the one hundred twentieth day after
 it shall have become a law.