S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   7244
 
                        2021-2022 Regular Sessions
 
                           I N  A S S E M B L Y
 
                              April 29, 2021
                                ___________
 
 Introduced by M. of A. JOYNER -- read once and referred to the Committee
   on Labor
 
 AN  ACT to amend the labor law, in relation to establishing criteria for
   the sale of automated employment decision tools
 
   THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
 BLY, DO ENACT AS FOLLOWS:

   Section  1.  The labor law is amended by adding a new section 203-f to
 read as follows:
   § 203-F. SALE OF AUTOMATED EMPLOYMENT DECISION TOOLS. 1. FOR  PURPOSES
 OF THIS SECTION, THE FOLLOWING TERMS SHALL HAVE THE FOLLOWING MEANINGS:
   A.  "AUTOMATED  EMPLOYMENT  DECISION  TOOL"  MEANS  ANY SYSTEM USED TO
 FILTER EMPLOYMENT CANDIDATES OR PROSPECTIVE CANDIDATES FOR HIRE IN A WAY
 THAT ESTABLISHES A PREFERRED CANDIDATE OR CANDIDATES WITHOUT RELYING  ON
 CANDIDATE-SPECIFIC  ASSESSMENTS BY INDIVIDUAL DECISION-MAKERS. AUTOMATED
 EMPLOYMENT DECISION TOOLS SHALL  INCLUDE  PERSONALITY  TESTS,  COGNITIVE
 ABILITY  TESTS,  RESUME SCORING SYSTEMS AND ANY SYSTEM WHOSE FUNCTION IS
 GOVERNED BY STATISTICAL THEORY, OR WHOSE PARAMETERS ARE DEFINED BY  SUCH
 SYSTEMS,  INCLUDING INFERENTIAL METHODOLOGIES, LINEAR REGRESSION, NEURAL
 NETWORKS, DECISION TREES, RANDOM FORESTS AND OTHER LEARNING ALGORITHMS.
   B. "DISPARATE IMPACT REPORT" MEANS  AN  ANALYSIS,  INCLUDING  BUT  NOT
 LIMITED  TO  TESTING, OF THE EXTENT TO WHICH USE OF AN AUTOMATED EMPLOY-
 MENT DECISION TOOL IS LIKELY TO RESULT  IN  AN  ADVERSE  IMPACT  TO  THE
 DETRIMENT  OF ANY GROUP ON THE BASIS OF SEX, RACE OR ETHNICITY. A DISPA-
 RATE IMPACT REPORT  SHALL  DIFFERENTIATE  BETWEEN  CANDIDATES  WHO  WERE
 SELECTED  AND  CANDIDATES  WHO  WERE  NOT SELECTED BY THE TOOL AND SHALL
 INCLUDE A DISPARATE IMPACT ANALYSIS AS SPECIFIED IN THE  UNIFORM  GUIDE-
 LINES  ON EMPLOYEE SELECTION PROCEDURES PROMULGATED BY THE UNITED STATES
 EQUAL EMPLOYMENT OPPORTUNITY COMMISSION.
   C. "DISABILITY ACCOMMODATION POLICY" MEANS AN OVERVIEW OF  THE  PROCE-
 DURES  AN  AUTOMATED  EMPLOYMENT  DECISION TOOL RELIES ON TO ENSURE THAT
 CANDIDATES WITH DISABILITIES CAN RECEIVE  REASONABLE  ACCOMMODATIONS  IN
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
              

                                                            LBD10862-01-1

 A. 7244                             2
 
 THE  HIRING  PROCESS  IN ACCORDANCE WITH THE AMERICANS WITH DISABILITIES
 ACT OF 1990, AS AMENDED (PUBLIC LAW 101-336).
   D. "EMPLOYMENT DECISION" MEANS TO SCREEN CANDIDATES FOR EMPLOYMENT.
   2. IT SHALL BE UNLAWFUL TO SELL OR OFFER FOR SALE AN AUTOMATED EMPLOY-
 MENT DECISION TOOL THAT FAILS TO COMPLY WITH THE FOLLOWING PROVISIONS:
   A.  A DISPARATE IMPACT REPORT SHALL BE CONDUCTED ONE YEAR PRIOR TO THE
 SALE OR THE OFFERING FOR SALE OF AN AUTOMATED EMPLOYMENT DECISION  TOOL.
 A  PUBLIC  DISCLOSURE REPORT SHALL BE PROVIDED TO THE DEPARTMENT NO LESS
 THAN ANNUALLY AND SHALL INCLUDE THE RESULTS OF THE MOST RECENT DISPARATE
 IMPACT REPORT FOR EACH AUTOMATED EMPLOYMENT DECISION TOOL AVAILABLE  FOR
 SALE  IN THE STATE. SUCH REPORT SHALL ALSO INCLUDE THE DISABILITY ACCOM-
 MODATION POLICY OF THE VENDOR.
   B. EVERY SALE OF SUCH TOOL SHALL INCLUDE A COPY  OF  THE  MOST  RECENT
 PUBLIC DISCLOSURE REPORT AT NO ADDITIONAL COST.
   C.  NO LESS THAN ANNUALLY, A DISPARATE IMPACT REPORT SHALL BE PRODUCED
 TO ASSESS THE ACTUAL IMPACT OF ANY AUTOMATED  EMPLOYMENT  DECISION  TOOL
 USED  BY  ANY  EMPLOYER  TO SELECT CANDIDATES FOR JOBS WITHIN THE STATE.
 SUCH DISPARATE IMPACT REPORT SHALL BE PROVIDED TO THE EMPLOYER BUT SHALL
 NOT BE PUBLICLY FILED AND SHALL BE SUBJECT TO ALL APPLICABLE PRIVILEGES.
   D. SUCH TOOL SHALL BE SOLD OR OFFERED FOR SALE WITH A  NOTICE  STATING
 THAT SUCH TOOL IS SUBJECT TO THE PROVISIONS OF THIS SECTION.
   3. A PERSON WHO USES AN AUTOMATED EMPLOYMENT DECISION TOOL TO SCREEN A
 CANDIDATE  FOR  AN EMPLOYMENT DECISION SHALL PROVIDE NOTICE TO EACH SUCH
 CANDIDATE THAT AN AUTOMATED EMPLOYMENT DECISION TOOL SUBJECT  TO  DISPA-
 RATE  IMPACT  REPORTING WAS USED IN CONNECTION WITH ASSESSING THE CANDI-
 DATE AND SHALL NOTIFY EACH SUCH CANDIDATE OF THE JOB  QUALIFICATIONS  OR
 CHARACTERISTICS THAT SUCH TOOL WAS USED TO ASSESS.
   4.  A. A PERSON WHO VIOLATES ANY PROVISION OF THIS SECTION OR ANY RULE
 OR REGULATION PROMULGATED THEREUNDER, SHALL BE SUBJECT TO A CIVIL PENAL-
 TY OF UP TO FIVE HUNDRED DOLLARS FOR THE FIRST VIOLATION  AND  FOR  EACH
 ADDITIONAL  VIOLATION  OCCURRING ON THE SAME DAY AS THE FIRST VIOLATION,
 AND A CIVIL PENALTY OF NOT LESS THAN FIVE HUNDRED DOLLARS, NOR MORE THAN
 ONE THOUSAND FIVE HUNDRED DOLLARS, FOR EACH SUBSEQUENT VIOLATION.
   B. VIOLATIONS SHALL ACCRUE ON A DAILY BASIS FOR EACH AUTOMATED EMPLOY-
 MENT DECISION TOOL THAT IS SOLD OR OFFERED  FOR  SALE  IN  VIOLATION  OF
 SUBDIVISION TWO OF THIS SECTION.
   C.  EACH INSTANCE IN WHICH NOTICE IS NOT PROVIDED TO A CANDIDATE PRIOR
 TO THE USE OF AN AUTOMATED EMPLOYMENT DECISION  TOOL,  IN  VIOLATION  OF
 SUBDIVISION  THREE  OF THIS SECTION, SHALL CONSTITUTE A SINGLE VIOLATION
 AND EACH THIRTY DAY PERIOD  THEREAFTER  IN  WHICH  SUCH  NOTICE  IS  NOT
 PROVIDED TO SUCH CANDIDATE SHALL CONSTITUTE A SEPARATE VIOLATION.
   5.  THE  COMMISSIONER MAY INITIATE AN INVESTIGATION IF A PREPONDERANCE
 OF THE EVIDENCE ESTABLISHES A SUSPICION OF A  VIOLATION,  INCLUDING  BUT
 NOT  LIMITED  TO,  MANDATING  A  THIRD PARTY DISPARATE IMPACT AUDIT. THE
 COMMISSIONER MAY ALSO INITIATE IN A COURT OF COMPETENT JURISDICTION  ANY
 ACTION  OR  PROCEEDING  THAT  MAY  BE  APPROPRIATE  OR NECESSARY FOR THE
 CORRECTION OF ANY VIOLATION ISSUED PURSUANT TO THIS  SECTION,  INCLUDING
 MANDATING  COMPLIANCE  WITH THE PROVISIONS OF THIS SECTION OR SUCH OTHER
 RELIEF AS MAY BE APPROPRIATE.
   6. THE DEPARTMENT MAY PROMULGATE RULES AND  REGULATIONS  AS  IT  DEEMS
 NECESSARY  TO EFFECTUATE THE PURPOSES OF THIS SECTION, ON OR BEFORE SUCH
 EFFECTIVE DATE.
   § 2. This act shall take effect immediately.