S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   6852
 
                        2021-2022 Regular Sessions
 
                             I N  S E N A T E
 
                               May 19, 2021
                                ___________
 
 Introduced  by  Sen.  RAMOS  -- read twice and ordered printed, and when
   printed to be committed 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

 S. 6852                             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.