S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   8328
 
                        2023-2024 Regular Sessions
 
                           I N  A S S E M B L Y
 
                             December 13, 2023
                                ___________
 
 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 restricting the use of
   electronic monitoring and automated employment decision tools; and  to
   amend the civil rights law, in relation to making a conforming change

   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-g  to
 read as follows:
   § 203-G. ELECTRONIC   MONITORING  AND  AUTOMATED  EMPLOYMENT  DECISION
 TOOLS. 1. FOR THE PURPOSES OF THIS SECTION, THE FOLLOWING TERMS HAVE THE
 FOLLOWING MEANINGS:
   (A) "AUTOMATED EMPLOYMENT DECISION TOOL" MEANS ANY COMPUTATIONAL PROC-
 ESS, AUTOMATED SYSTEM, OR ALGORITHM UTILIZING MACHINE LEARNING,  STATIS-
 TICAL  MODELING,  DATA  ANALYTICS,  ARTIFICIAL  INTELLIGENCE, OR SIMILAR
 METHODS THAT ISSUES A SIMPLIFIED OUTPUT, INCLUDING A SCORE,  CLASSIFICA-
 TION,  RANKING,  OR  RECOMMENDATION,  THAT  IS USED TO ASSIST OR REPLACE
 DECISION MAKING FOR EMPLOYMENT DECISIONS THAT  IMPACT  NATURAL  PERSONS.
 "AUTOMATED  EMPLOYMENT  DECISION TOOL" DOES NOT INCLUDE A TOOL THAT DOES
 NOT ASSIST OR REPLACE EMPLOYMENT DECISION PROCESSES AND  THAT  DOES  NOT
 MATERIALLY IMPACT NATURAL PERSONS, INCLUDING, BUT NOT LIMITED TO, A JUNK
 EMAIL  FILTER,  FIREWALL,  ANTIVIRUS  SOFTWARE, CALCULATOR, SPREADSHEET,
 DATABASE, DATA SET, OR OTHER COMPILATION OF DATA.
   (B) "BIAS AUDIT" MEANS AN IMPARTIAL EVALUATION BY AN INDEPENDENT AUDI-
 TOR, WHICH SHALL INCLUDE, AT A MINIMUM,  THE  TESTING  OF  AN  AUTOMATED
 EMPLOYMENT  DECISION  TOOL  TO  ASSESS  THE  TOOL'S  DISPARATE IMPACT ON
 EMPLOYEES BECAUSE OF THEIR AGE, RACE, CREED, COLOR, ETHNICITY,  NATIONAL
 ORIGIN,  DISABILITY, CITIZENSHIP OR IMMIGRATION STATUS, MARITAL OR FAMI-
 LIAL STATUS, MILITARY STATUS, RELIGION, OR SEX, INCLUDING SEXUAL  ORIEN-
 TATION,   GENDER   IDENTITY,  GENDER  EXPRESSION,  PREGNANCY,  PREGNANCY
 OUTCOMES, AND REPRODUCTIVE HEALTHCARE CHOICES.
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
                                                            LBD11940-04-3
              

 A. 8328                             2
 
   (C) "CANDIDATE" MEANS ANY NATURAL PERSON OR THEIR AUTHORIZED REPRESEN-
 TATIVE SEEKING EMPLOYMENT THROUGH AN APPLICATION, OR WHO IS SCREENED  OR
 EVALUATED  FOR  RECRUITMENT,  FOR A POSITION OF EMPLOYMENT BY A BUSINESS
 OPERATING IN THE STATE.
   (D) "ELECTRONIC MONITORING TOOL" MEANS ANY SYSTEM THAT FACILITATES THE
 COLLECTION OF DATA CONCERNING WORKER ACTIVITIES OR COMMUNICATIONS BY ANY
 MEANS  OTHER  THAN DIRECT OBSERVATION BY A NATURAL PERSON, INCLUDING THE
 USE OF A COMPUTER,  TELEPHONE,  WIRE,  RADIO,  CAMERA,  ELECTROMAGNETIC,
 PHOTOELECTRONIC, OR PHOTO-OPTICAL SYSTEM.
   (E) "EMPLOYER" MEANS ANY PERSON WHO DIRECTLY OR INDIRECTLY, OR THROUGH
 AN  AGENT  OR  ANY  OTHER  PERSON, EMPLOYS OR EXERCISES CONTROL OVER THE
 WAGES, BENEFITS, OTHER COMPENSATION, HOURS, WORKING  CONDITIONS,  ACCESS
 TO  WORK  OR  JOB OPPORTUNITIES, OR OTHER TERMS OR CONDITIONS OF EMPLOY-
 MENT, OF ANY WORKER. "EMPLOYER" INCLUDES ANY  OF  THE  EMPLOYER'S  LABOR
 CONTRACTORS.
   (F)  "EMPLOYEE" MEANS ANY NATURAL PERSON OR THEIR AUTHORIZED REPRESEN-
 TATIVE ACTING FOR, EMPLOYED BY, OR AN INDEPENDENT  CONTRACTOR  PROVIDING
 SERVICE TO, OR THROUGH, A BUSINESS OPERATING IN THE STATE.
   (G) "EMPLOYEE DATA" MEANS ANY INFORMATION THAT IDENTIFIES, RELATES TO,
 DESCRIBES,  IS  REASONABLY  CAPABLE  OF  BEING ASSOCIATED WITH, OR COULD
 REASONABLY BE LINKED, DIRECTLY OR INDIRECTLY, WITH A PARTICULAR  EMPLOY-
 EE,  REGARDLESS  OF  HOW  THE  INFORMATION  IS  COLLECTED,  INFERRED, OR
 OBTAINED.  DATA INCLUDES, BUT IS NOT LIMITED TO, THE FOLLOWING:
   (I) PERSONAL IDENTITY INFORMATION, INCLUDING  THE  INDIVIDUAL'S  NAME,
 CONTACT  INFORMATION, GOVERNMENT-ISSUED IDENTIFICATION NUMBER, FINANCIAL
 INFORMATION, CRIMINAL BACKGROUND, OR EMPLOYMENT HISTORY;
   (II) BIOMETRIC INFORMATION, INCLUDING THE INDIVIDUAL'S  PHYSIOLOGICAL,
 BIOLOGICAL,  OR  BEHAVIORAL  CHARACTERISTICS, INCLUDING THE INDIVIDUAL'S
 DEOXYRIBONUCLEIC ACID (DNA), THAT CAN BE USED, SINGLY OR IN  COMBINATION
 WITH OTHER DATA, TO ESTABLISH INDIVIDUAL IDENTITY;
   (III)  HEALTH, MEDICAL, LIFESTYLE, AND WELLNESS INFORMATION, INCLUDING
 THE INDIVIDUAL'S MEDICAL HISTORY, PHYSICAL OR MENTAL CONDITION, DIET  OR
 PHYSICAL  ACTIVITY  PATTERNS, HEART RATE, MEDICAL TREATMENT OR DIAGNOSIS
 BY A HEALTH CARE PROFESSIONAL, HEALTH INSURANCE POLICY NUMBER, SUBSCRIB-
 ER IDENTIFICATION NUMBER, OR OTHER UNIQUE IDENTIFIER  USED  TO  IDENTIFY
 THE INDIVIDUAL; AND
   (IV)  ANY  DATA RELATED TO WORKPLACE ACTIVITIES, INCLUDING THE FOLLOW-
 ING:
   (A) HUMAN RESOURCES INFORMATION, INCLUDING THE CONTENTS OF AN INDIVID-
 UAL'S PERSONNEL FILE OR PERFORMANCE EVALUATIONS;
   (B) WORK PROCESS INFORMATION,  SUCH  AS  PRODUCTIVITY  AND  EFFICIENCY
 DATA;
   (C)  DATA  THAT  CAPTURES  WORKPLACE  COMMUNICATIONS AND INTERACTIONS,
 INCLUDING EMAILS, TEXTS, INTERNAL MESSAGE BOARDS,  AND  CUSTOMER  INTER-
 ACTION AND RATINGS;
   (D)  DEVICE  USAGE  AND  DATA,  INCLUDING  CALLS PLACED OR GEOLOCATION
 INFORMATION;
   (E) AUDIO-VIDEO DATA AND OTHER  INFORMATION  COLLECTED  FROM  SENSORS,
 INCLUDING  MOVEMENT  TRACKING,  THERMAL  SENSORS, VOICEPRINTS, OR FACIAL
 RECOGNITION, EMOTION, AND GAIT RECOGNITION;
   (F) INPUTS TO OR OUTPUTS GENERATED BY AN AUTOMATED EMPLOYMENT DECISION
 TOOL THAT ARE LINKED TO THE INDIVIDUAL; AND
   (G) DATA THAT IS COLLECTED OR GENERATED ON  WORKERS  TO  MITIGATE  THE
 SPREAD  OF  INFECTIOUS  DISEASES,  INCLUDING COVID-19, OR TO COMPLY WITH
 PUBLIC HEALTH MEASURES.
 A. 8328                             3
 
   (H) "EMPLOYMENT DECISION" MEANS ANY DECISION MADE BY THE EMPLOYER THAT
 AFFECTS WAGES,  BENEFITS,  OTHER  COMPENSATION,  HOURS,  WORK  SCHEDULE,
 PERFORMANCE  EVALUATION,  HIRING, SELECTING FOR RECRUITMENT, DISCIPLINE,
 PROMOTION, TERMINATION, JOB CONTENT, ASSIGNMENT OF WORK, ACCESS TO  WORK
 OPPORTUNITIES,  PRODUCTIVITY  REQUIREMENTS, WORKPLACE HEALTH AND SAFETY,
 AND OTHER TERMS OR CONDITIONS OF EMPLOYMENT. FOR INDEPENDENT CONTRACTORS
 OR CANDIDATES FOR EMPLOYMENT, THIS MEANS THE EQUIVALENT OF  THESE  DECI-
 SIONS BASED ON THEIR CONTRACT WITH OR RELATIONSHIP TO THE EMPLOYER.
   (I)  "VENDOR" MEANS ANY PERSON WHO SELLS, DISTRIBUTES, OR DEVELOPS FOR
 SALE AN AUTOMATED EMPLOYMENT DECISION TOOL TO BE USED IN  AN  EMPLOYMENT
 DECISION MADE BY AN EMPLOYER IN THE STATE.
   2. (A) IT SHALL BE UNLAWFUL FOR AN EMPLOYER TO USE AN ELECTRONIC MONI-
 TORING TOOL TO COLLECT EMPLOYEE DATA UNLESS:
   (I) THE ELECTRONIC MONITORING TOOL IS PRIMARILY INTENDED TO ACCOMPLISH
 ANY OF THE FOLLOWING PURPOSES:
   (A) ALLOWING A WORKER TO ACCOMPLISH AN ESSENTIAL JOB FUNCTION;
   (B) ENSURING THE QUALITY OF GOODS AND SERVICES;
   (C) PERIODIC ASSESSMENT OF WORKER PERFORMANCE;
   (D)  ENSURING  COMPLIANCE  WITH  EMPLOYMENT,  LABOR, OR OTHER RELEVANT
 LAWS;
   (E) PROTECTING THE HEALTH, SAFETY, OR  SECURITY  OF  WORKERS,  OR  THE
 SECURITY OF THE EMPLOYER'S FACILITIES OR COMPUTER NETWORKS;
   (F) ADMINISTERING WAGES AND BENEFITS; OR
   (G) ADDITIONAL PURPOSES TO ENABLE BUSINESS OPERATIONS AS DETERMINED BY
 THE DEPARTMENT;
   (II)  THE  SPECIFIC  TYPE  OF  ELECTRONIC  MONITORING TOOL IS STRICTLY
 NECESSARY TO ACCOMPLISH THE PURPOSE, EXCLUSIVELY USED TO ACCOMPLISH  THE
 PURPOSE,  AND  IS  THE  LEAST  INVASIVE MEANS TO THE EMPLOYEE THAT COULD
 REASONABLY BE USED TO ACCOMPLISH THE PURPOSE; AND
   (III) THE SPECIFIC FORM OF ELECTRONIC MONITORING  IS  LIMITED  TO  THE
 SMALLEST  NUMBER OF WORKERS AND COLLECTS THE LEAST AMOUNT OF DATA NECES-
 SARY TO ACCOMPLISH THE PURPOSE.
   (B) ANY EMPLOYER THAT USES AN ELECTRONIC MONITORING  TOOL  SHALL  GIVE
 PRIOR  WRITTEN  NOTICE TO ALL EMPLOYEES WHO MAY BE SUBJECT TO ELECTRONIC
 MONITORING AND POST SAID NOTICE IN A CONSPICUOUS PLACE WHICH IS  READILY
 AVAILABLE  FOR  VIEWING  BY  EMPLOYEES,  PURSUANT  TO SUBDIVISION TWO OF
 SECTION FIFTY-TWO-E OF THE CIVIL RIGHTS LAW. SUCH NOTICE SHALL  INCLUDE,
 AT A MINIMUM, THE FOLLOWING:
   (I)  A  DESCRIPTION OF THE PURPOSE FOR WHICH THE ELECTRONIC MONITORING
 TOOL WILL BE USED, AS SPECIFIED IN SUBPARAGRAPH (I) OF PARAGRAPH (A)  OF
 THIS SUBDIVISION;
   (II)  A DESCRIPTION OF THE SPECIFIC EMPLOYEE DATA TO BE COLLECTED, AND
 THE ACTIVITIES, LOCATIONS, COMMUNICATIONS, AND JOB ROLES  THAT  WILL  BE
 ELECTRONICALLY MONITORED BY THE TOOL;
   (III) A DESCRIPTION OF THE DATES, TIMES, AND FREQUENCY THAT ELECTRONIC
 MONITORING WILL OCCUR;
   (IV)  WHETHER  AND  HOW  ANY EMPLOYEE DATA COLLECTED BY THE ELECTRONIC
 MONITORING TOOL WILL BE USED AS AN  INPUT  IN  AN  AUTOMATED  EMPLOYMENT
 DECISION TOOL;
   (V)  WHETHER  AND  HOW  ANY  EMPLOYEE DATA COLLECTED BY THE ELECTRONIC
 MONITORING TOOL WILL ALONE OR IN CONJUNCTION WITH AN  AUTOMATED  EMPLOY-
 MENT DECISION TOOL BE USED TO MAKE AN EMPLOYMENT DECISION BY THE EMPLOY-
 ER OR EMPLOYMENT AGENCY;
   (VI)  WHETHER ANY EMPLOYEE DATA COLLECTED BY THE ELECTRONIC MONITORING
 TOOL WILL BE USED TO ASSESS EMPLOYEES' PRODUCTIVITY  PERFORMANCE  OR  TO
 SET PRODUCTIVITY STANDARDS, AND IF SO, HOW;
 A. 8328                             4
 
   (VII)  A DESCRIPTION OF WHERE ANY EMPLOYEE DATA COLLECTED BY THE ELEC-
 TRONIC MONITORING TOOL WILL BE STORED AND THE LENGTH OF TIME IT WILL  BE
 RETAINED; AND
   (VIII) AN EXPLANATION FOR HOW THE SPECIFIC ELECTRONIC MONITORING PRAC-
 TICE  IS THE LEAST INVASIVE MEANS AVAILABLE TO ACCOMPLISH THE MONITORING
 PURPOSE.
   (C) AN EMPLOYER SHALL DESTROY ANY EMPLOYEE DATA COLLECTED VIA AN ELEC-
 TRONIC MONITORING TOOL WHEN THE INITIAL PURPOSE FOR COLLECTING THE  DATA
 HAS BEEN SATISFIED OR AT THE END OF THE EMPLOYEE'S RELATIONSHIP WITH THE
 EMPLOYER,  UNLESS THE EMPLOYEE HAS PROVIDED WRITTEN AND INFORMED CONSENT
 TO THE RETENTION OF THEIR DATA BY THE EMPLOYER.
   (D) NOTICE OF THE SPECIFIC FORM  OF  ELECTRONIC  MONITORING  SHALL  BE
 CLEAR AND CONSPICUOUS AND PROVIDE THE WORKER WITH ACTUAL NOTICE OF ELEC-
 TRONIC MONITORING ACTIVITIES. A NOTICE THAT STATES ELECTRONIC MONITORING
 "MAY"  TAKE  PLACE  OR THAT THE EMPLOYER "RESERVES THE RIGHT" TO MONITOR
 SHALL NOT BE CONSIDERED CLEAR AND CONSPICUOUS.
   (E) (I) AN EMPLOYER WHO ENGAGES IN RANDOM OR PERIODIC ELECTRONIC MONI-
 TORING OF EMPLOYEES SHALL INFORM THE AFFECTED EMPLOYEES OF THE  SPECIFIC
 EVENTS WHICH ARE BEING MONITORED AT THE TIME THE MONITORING TAKES PLACE.
 NOTICE SHALL BE CLEAR AND CONSPICUOUS.
   (II)  NOTICE  OF RANDOM OR PERIODIC ELECTRONIC MONITORING MAY BE GIVEN
 AFTER ELECTRONIC MONITORING HAS OCCURRED ONLY IF NECESSARY  TO  PRESERVE
 THE  INTEGRITY  OF  AN  INVESTIGATION OF ILLEGAL ACTIVITY OR PROTECT THE
 IMMEDIATE SAFETY OF EMPLOYEES, CUSTOMERS, OR THE PUBLIC.
   3. (A) NOTWITHSTANDING THE ALLOWABLE PURPOSES FOR ELECTRONIC  MONITOR-
 ING  DESCRIBED  IN  PARAGRAPH (A) OF SUBDIVISION TWO OF THIS SECTION, AN
 EMPLOYER SHALL NOT:
   (I) USE AN ELECTRONIC MONITORING TOOL IN SUCH A MANNER THAT RESULTS IN
 A VIOLATION OF LABOR OR EMPLOYMENT LAW;
   (II) USE AN ELECTRONIC MONITORING TOOL IN SUCH A MANNER AS TO THREATEN
 THE HEALTH, WELFARE, SAFETY, OR LEGAL RIGHTS OF EMPLOYEES;
   (III) USE AN ELECTRONIC MONITORING TOOL TO MONITOR EMPLOYEES  WHO  ARE
 OFF-DUTY AND NOT PERFORMING WORK-RELATED TASKS;
   (IV)  USE AN ELECTRONIC MONITORING TOOL IN ORDER TO OBTAIN INFORMATION
 ABOUT AN EMPLOYEE'S RELIGIOUS BELIEFS, HEALTH OR DISABILITY  STATUS,  OR
 IMMIGRATION STATUS;
   (V) USE AN ELECTRONIC MONITORING TOOL IN ORDER TO IDENTIFY, PUNISH, OR
 OBTAIN  INFORMATION ABOUT EMPLOYEES ENGAGING IN ACTIVITY PROTECTED UNDER
 LABOR AND EMPLOYMENT LAW;
   (VI) USE AN ELECTRONIC MONITORING TOOL IN ORDER TO OR WITH THE  EFFECT
 OF INFORMING A DYNAMIC WAGE-SETTING SYSTEM;
   (VII)  CONDUCT AUDIO-VISUAL MONITORING OF BATHROOMS OR OTHER SIMILARLY
 PRIVATE AREAS, INCLUDING LOCKER ROOMS, CHANGING AREAS, BREAKROOMS, SMOK-
 ING AREAS, EMPLOYEE CAFETERIAS, LOUNGES,  AREAS  DESIGNATED  TO  EXPRESS
 BREAST MILK, OR AREAS DESIGNATED FOR PRAYER OR OTHER RELIGIOUS ACTIVITY,
 INCLUDING  DATA  COLLECTION  ON  THE  FREQUENCY  OF USE OF THOSE PRIVATE
 AREAS;
   (VIII) CONDUCT AUDIO-VISUAL MONITORING OF A WORKPLACE IN AN EMPLOYEE'S
 RESIDENCE, AN EMPLOYEE'S PERSONAL VEHICLE, OR PROPERTY OWNED  OR  LEASED
 BY  AN  EMPLOYEE, UNLESS THAT AUDIO-VISUAL MONITORING IS STRICTLY NECES-
 SARY TO ENSURE EMPLOYEE HEALTH AND SAFETY, TO  VERIFY  THE  SECURITY  OF
 COMPANY  OR  CLIENT  DATA,  OR  TO ACCOMPLISH OTHER SIMILARLY COMPELLING
 PURPOSES;
   (IX) USE AN ELECTRONIC MONITORING TOOL THAT INCORPORATES FACIAL RECOG-
 NITION, GAIT, OR EMOTION RECOGNITION TECHNOLOGY;
 A. 8328                             5
 
   (X) DISCIPLINE OR TERMINATE THE EMPLOYMENT OF AN  EMPLOYEE  SOLELY  ON
 THE BASIS OF THEIR OPPOSITION OF OR REFUSAL TO SUBMIT TO A PRACTICE THAT
 THE EMPLOYEE BELIEVES IN GOOD FAITH THAT VIOLATE THIS SECTION; OR
   (XI) WHERE EMPLOYEES HAVE UNION REPRESENTATION, REFUSE TO BARGAIN OVER
 THE USE OF ELECTRONIC MONITORING TOOLS.
   (B) AN EMPLOYER SHALL NOT USE EMPLOYEE DATA COLLECTED VIA AN ELECTRON-
 IC  MONITORING    TOOL  FOR  PURPOSES  OTHER THAN THOSE SPECIFIED IN THE
 NOTICE PROVIDED PURSUANT TO PARAGRAPH (B) OF  SUBDIVISION  TWO  OF  THIS
 SECTION.
   (C)   AN  EMPLOYER SHALL NOT SELL, TRANSFER, OR DISCLOSE EMPLOYEE DATA
 COLLECTED VIA AN ELECTRONIC   MONITORING   TOOL   TO  ANY  OTHER  ENTITY
 UNLESS  IT IS REQUIRED TO DO SO UNDER STATE OR FEDERAL LAW, OR NECESSARY
 TO DO SO TO COMPLY WITH A BIAS AUDIT OF AN AUTOMATED EMPLOYMENT DECISION
 TOOL PURSUANT TO SUBDIVISION FOUR OF THIS SECTION.
   (D) AN EMPLOYER SHALL NOT REQUIRE EMPLOYEES TO EITHER INSTALL APPLICA-
 TIONS ON PERSONAL DEVICES THAT COLLECT OR TRANSMIT EMPLOYEE DATA OR   TO
 WEAR,  EMBED,  OR PHYSICALLY IMPLANT THOSE DEVICES, INCLUDING THOSE THAT
 ARE  INSTALLED SUBCUTANEOUSLY OR INCORPORATED INTO ITEMS OF CLOTHING  OR
 PERSONAL  ACCESSORIES,  UNLESS  THE  ELECTRONIC  MONITORING IS  STRICTLY
 NECESSARY TO ACCOMPLISH ESSENTIAL JOB FUNCTIONS AND IS NARROWLY  LIMITED
 TO  ONLY  THE ACTIVITIES AND TIMES NECESSARY TO ACCOMPLISH ESSENTIAL JOB
 FUNCTIONS. LOCATION TRACKING APPLICATIONS AND DEVICES SHALL BE  DISABLED
 OUTSIDE  THE  ACTIVITIES AND TIMES NECESSARY TO ACCOMPLISH ESSENTIAL JOB
 FUNCTIONS.
   (E)  AN  EMPLOYER  SHALL  NOT  RELY  SOLELY ON EMPLOYEE DATA COLLECTED
 THROUGH ELECTRONIC MONITORING  WHEN  MAKING  HIRING,  PROMOTION,  TERMI-
 NATION, DISCIPLINARY, OR COMPENSATION DECISIONS.
   (F)  THE  INFORMATION  AND  JUDGMENTS INVOLVED IN AN EMPLOYER'S USE OF
 ELECTRONIC MONITORING DATA  SHALL  BE  DOCUMENTED  AND  COMMUNICATED  TO
 AFFECTED  EMPLOYEES  PRIOR  TO  THE  HIRING,  PROMOTION, TERMINATION, OR
 DISCIPLINARY DECISION GOING INTO EFFECT.
   (G) DATA THAT PROVIDES EVIDENCE OF CRIMINAL ACTIVITY,  WHEN  INDEPEND-
 ENTLY  CORROBORATED  BY  THE  EMPLOYER,  OR  CAPTURED THROUGH THE USE OF
 REASONABLE SECURITY MEASURES THAT COMPLY WITH PARAGRAPH (A) OF  SUBDIVI-
 SION TWO OF THIS SECTION, IS EXEMPT FROM THIS SUBDIVISION.
   4.  (A)  IT  SHALL  BE  UNLAWFUL  FOR  AN EMPLOYER TO USE AN AUTOMATED
 EMPLOYMENT DECISION TOOL FOR AN EMPLOYMENT DECISION UNLESS SUCH TOOL HAS
 BEEN THE SUBJECT OF A BIAS AUDIT. BIAS AUDITS FOR  AUTOMATED  EMPLOYMENT
 DECISION TOOLS MUST:
   (I)  BE CONDUCTED NO MORE THAN ONE YEAR PRIOR TO THE USE OF SUCH TOOL,
 OR WHERE THE TOOL WAS IN USE BY THE EMPLOYER BEFORE THIS  ACT  BECAME  A
 LAW, WITHIN SIX MONTHS OF THIS ACT BECOMING A LAW; AND
   (II) BE CONDUCTED BY AN INDEPENDENT AND IMPARTIAL PARTY WITH NO FINAN-
 CIAL OR LEGAL CONFLICTS OF INTEREST;
   (III)  IDENTIFY  AND  DESCRIBE  THE ATTRIBUTES AND MODELING TECHNIQUES
 THAT THE TOOL USES TO PRODUCE OUTPUTS;
   (IV) EVALUATE WHETHER THOSE ATTRIBUTES AND TECHNIQUES ARE A  SCIENTIF-
 ICALLY  VALID MEANS OF EVALUATING AN EMPLOYEE OR CANDIDATE'S PERFORMANCE
 OR ABILITY TO PERFORM THE ESSENTIAL FUNCTIONS OF  A  ROLE,  AND  WHETHER
 THOSE  ATTRIBUTES  MAY  FUNCTION AS A PROXY FOR BELONGING TO A PROTECTED
 CLASS;
   (V) CONSIDER, IDENTIFY, AND DESCRIBE ANY DISPARITIES IN THE DATA  USED
 TO  TRAIN  OR  DEVELOP  THE  TOOL AND DESCRIBE HOW THOSE DISPARITIES MAY
 RESULT IN A DISPARATE IMPACT ON PERSONS BELONGING TO A PROTECTED  CLASS,
 AND  WHAT  ACTIONS MAY BE TAKEN BY THE EMPLOYER OR VENDOR OF THE TOOL TO
 REDUCE OR REMEDY ANY DISPARATE IMPACT;
 A. 8328                             6
 
   (VI) CONSIDER, IDENTIFY, AND DESCRIBE ANY DISPARITIES IN  THE  OUTPUTS
 PRODUCED  BY  THE  TOOL THAT MAY RESULT IN A DISPARATE IMPACT ON PERSONS
 BELONGING TO A PROTECTED CLASS, AND WHAT ACTIONS MAY  BE  TAKEN  BY  THE
 EMPLOYER  OR  VENDOR  OF  THE  TOOL  TO  REDUCE OR REMEDY THAT DISPARATE
 IMPACT;
   (VII) EVALUATE WHETHER THE USE OF THE TOOL MAY LIMIT ACCESSIBILITY FOR
 PERSONS  WITH DISABILITIES, OR FOR PERSONS WITH ANY SPECIFIC DISABILITY,
 AND WHAT ACTIONS MAY BE TAKEN BY THE EMPLOYER OR VENDOR OF THE  TOOL  TO
 REDUCE OR REMEDY THE CONCERN;
   (VIII) IDENTIFY AND DESCRIBE ANY OTHER ASSESSMENT OF RISKS OF DISCRIM-
 INATION  OR  A  DISPARATE  IMPACT  OF THE TOOL ON MEMBERS OF A PROTECTED
 CLASS THAT ARISE OVER THE COURSE OF THE BIAS AUDIT, AND WHAT ACTIONS MAY
 BE TAKEN TO REDUCE OR REMEDY THAT RISK;
   (IX) FOR ANY FINDING OF A DISPARATE IMPACT OR LIMIT ON  ACCESSIBILITY,
 EVALUATE  WHETHER  THE  DATA  SET,  ATTRIBUTE, OR FEATURE OF THE TOOL AT
 ISSUE IS THE LEAST DISCRIMINATORY  METHOD  OF  ASSESSING  A  CANDIDATE'S
 PERFORMANCE OR ABILITY TO PERFORM JOB FUNCTIONS; AND
   (X)  BE SUBMITTED IN ITS ENTIRETY OR AN ACCESSIBLE SUMMARY FORM TO THE
 DEPARTMENT FOR INCLUSION IN A PUBLIC  REGISTRY  OF  SUCH  AUDITS  WITHIN
 SIXTY DAYS OF COMPLETION AND DISTRIBUTED TO EMPLOYEES WHO MAY BE SUBJECT
 TO THE TOOL.
   (B)  AN  EMPLOYER  SHALL  CONDUCT OR COMMISSION SUBSEQUENT AUDITS EACH
 YEAR THAT THE TOOL IS IN USE TO ASSIST OR REPLACE EMPLOYMENT  DECISIONS.
 SUBSEQUENT AUDITS SHALL COMPLY WITH THE REQUIREMENTS OF PARAGRAPH (A) OF
 THIS SUBDIVISION, AND SHALL ASSESS AND DESCRIBE ANY CHANGE IN THE VALID-
 ITY OR DISPARATE IMPACT OF THE TOOL.
   (C) AN EMPLOYER OR VENDOR SHALL RETAIN ALL DOCUMENTATION PERTAINING TO
 THE  DESIGN, DEVELOPMENT, USE, AND DATA OF AN AUTOMATED EMPLOYMENT DECI-
 SION TOOL THAT MAY BE NECESSARY TO CONDUCT A BIAS AUDIT.  THIS  INCLUDES
 BUT  IS  NOT LIMITED TO THE SOURCE OF THE DATA USED TO DEVELOP THE TOOL,
 THE TECHNICAL SPECIFICATIONS OF THE TOOL, INDIVIDUALS  INVOLVED  IN  THE
 DEVELOPMENT  OF  THE  TOOL,  AND  HISTORICAL USE DATA FOR THE TOOL. SUCH
 DOCUMENTATION MUST INCLUDE A HISTORICAL RECORD OF VERSIONS OF THE  TOOL,
 SUCH THAT AN EMPLOYER SHALL BE ABLE TO ATTEST IN THE EVENT OF LITIGATION
 DISPUTING  AN  EMPLOYMENT DECISION, THE NATURE AND SPECIFICATIONS OF THE
 TOOL AS IT WAS USED AT  THE  TIME  OF  THAT  EMPLOYMENT  DECISION.  SUCH
 DOCUMENTATION  SHALL  BE  STORED  IN  SUCH A MANNER AS TO BE LEGIBLE AND
 ACCESSIBLE TO THE PARTY CONDUCTING A BIAS AUDIT.
   (D) IF AN INITIAL OR SUBSEQUENT BIAS AUDIT REQUIRES THE COLLECTION  OF
 SENSITIVE  EMPLOYEE  DATA TO ASSESS A TOOL'S DISPARATE IMPACT ON EMPLOY-
 EES, SUCH DATA SHALL BE COLLECTED, PROCESSED, STORED,  AND  RETAINED  IN
 SUCH  A  MANNER  AS  TO  PROTECT THE PRIVACY OF EMPLOYEES. EMPLOYEE DATA
 PROVIDED TO AUDITORS FOR THE PURPOSE OF A BIAS AUDIT SHALL NOT BE SHARED
 WITH THE EMPLOYER, NOR SHALL IT BE  SHARED  WITH  ANY  PERSON,  BUSINESS
 ENTITY,   OR  OTHER  ORGANIZATION  UNLESS  STRICTLY  NECESSARY  FOR  THE
 COMPLETION OF THE BIAS AUDIT.
   (E) IF AN INITIAL OR SUBSEQUENT BIAS AUDIT CONCLUDES THAT A DATA  SET,
 FEATURE,  OR  APPLICATION  OF  THE  AUTOMATED  EMPLOYMENT  DECISION TOOL
 RESULTS IN A DISPARATE IMPACT ON PERSONS BELONGING TO A PROTECTED CLASS,
 OR UNLAWFULLY LIMIT ACCESSIBILITY  FOR  PERSONS  WITH  DISABILITIES,  AN
 EMPLOYER SHALL:
   (I)  TAKE  REASONABLE  AND  APPROPRIATE STEPS TO REDUCE OR REMEDY THAT
 DISPARATE IMPACT OR LIMIT ON ACCESSIBILITY AND DESCRIBE  IN  WRITING  TO
 EMPLOYEES, THE AUDITOR, AND THE DEPARTMENT WHAT STEPS WERE TAKEN; AND
   (II)  IF THE EMPLOYER BELIEVES THE AUDIT FINDING OF A DISPARATE IMPACT
 OR LIMIT ON ACCESSIBILITY IS ERRONEOUS,  OR  THAT  THE  STEPS  TAKEN  IN
 A. 8328                             7
 
 ACCORDANCE  WITH SUBPARAGRAPH (I) OF THIS PARAGRAPH SUFFICIENTLY ADDRESS
 THOSE FINDINGS SUCH THAT THE TOOL MAY BE  LAWFULLY  USED  IN  ACCORDANCE
 WITH  THIS  SECTION,  DESCRIBE IN WRITING TO EMPLOYEES, THE AUDITOR, AND
 THE  DEPARTMENT HOW THE DATA SET, FEATURE, OR APPLICATION OF THE TOOL IS
 THE LEAST DISCRIMINATORY METHOD OF ASSESSING AN  EMPLOYEE'S  PERFORMANCE
 OR ABILITY TO COMPLETE ESSENTIAL FUNCTIONS OF A POSITION; OR
   (III) IF THE EMPLOYER BELIEVES THE AUDIT FINDING OF A DISPARATE IMPACT
 OR LIMIT ON ACCESSIBILITY IS PART OF A LAWFUL AFFIRMATIVE ACTION PLAN OR
 OTHER LAWFUL EFFORT TO REDUCE OR ELIMINATE BIAS IN EMPLOYMENT DECISIONS,
 DESCRIBE  SUCH  PLAN OR EFFORT IN WRITING TO EMPLOYEES, THE AUDITOR, AND
 THE DEPARTMENT.
   (F) IT SHALL BE  UNLAWFUL  FOR  AN  INDEPENDENT  AUDITOR,  VENDOR,  OR
 EMPLOYER  TO  MANIPULATE, CONCEAL, OR MISREPRESENT THE RESULTS OF A BIAS
 AUDIT.
   5. ANY EMPLOYER THAT USES AN AUTOMATED EMPLOYMENT DECISION TOOL  SHALL
 NOTIFY  EMPLOYEES  AND  CANDIDATES  SUBJECT TO THE TOOL NO LESS THAN TEN
 BUSINESS DAYS BEFORE SUCH USE:
   (A) THAT AN  AUTOMATED  EMPLOYMENT  DECISION  TOOL  WILL  BE  USED  IN
 CONNECTION  WITH THE ASSESSMENT OR EVALUATION OF SUCH EMPLOYEE OR CANDI-
 DATE;
   (B) THE JOB QUALIFICATIONS AND  CHARACTERISTICS  THAT  SUCH  AUTOMATED
 EMPLOYMENT DECISION TOOL WILL ASSESS, WHAT EMPLOYEE OR CANDIDATE DATA OR
 ATTRIBUTES  THE  TOOL WILL USE TO CONDUCT THAT ASSESSMENT, AND WHAT KIND
 OF OUTPUTS THE TOOL WILL PRODUCE AS AN EVALUATION OF  SUCH  EMPLOYEE  OR
 CANDIDATE;
   (C)  WHAT  EMPLOYEE  OR  CANDIDATE DATA IS COLLECTED FOR THE AUTOMATED
 EMPLOYMENT DECISION TOOL, THE SOURCE OF SUCH  DATA  AND  THE  EMPLOYER'S
 DATA  RETENTION POLICY.   INFORMATION PURSUANT TO THIS SECTION SHALL NOT
 BE DISCLOSED WHERE SUCH DISCLOSURE WOULD VIOLATE LOCAL, STATE, OR FEDER-
 AL LAW, OR INTERFERE WITH A LAW ENFORCEMENT INVESTIGATION;
   (D) THE RESULTS OF THE MOST RECENT BIAS AUDIT OF THE AUTOMATED EMPLOY-
 MENT DECISION TOOL, INCLUDING ANY FINDINGS OF  A  DISPARATE  IMPACT  AND
 ASSOCIATED  RESPONSE  FROM  THE  EMPLOYER,  OR  INFORMATION ABOUT HOW TO
 ACCESS THAT INFORMATION IF PUBLICLY AVAILABLE;
   (E) INFORMATION ABOUT HOW AN EMPLOYEE  OR  CANDIDATE  MAY  REQUEST  AN
 ALTERNATIVE SELECTION PROCESS OR ACCOMMODATION THAT DOES NOT INVOLVE THE
 USE OF AN AUTOMATED EMPLOYMENT DECISION TOOL; AND
   (F)  INFORMATION  ABOUT  HOW THE EMPLOYEE OR CANDIDATE MAY (I) REQUEST
 INTERNAL REVIEW OF THE EMPLOYMENT DECISION MADE BY THE AUTOMATED EMPLOY-
 MENT DECISION TOOL IN ACCORDANCE WITH SUBDIVISION SEVEN OF THIS  SECTION
 AND  (II)  NOTIFICATION  OF  THE EMPLOYEE OR CANDIDATE'S RIGHT TO FILE A
 COMPLAINT IN A CIVIL COURT IN ACCORDANCE WITH SUBDIVISION EIGHT OF  THIS
 SECTION.
   6.  (A)  NOTWITHSTANDING  THE  PROVISIONS  OF SUBDIVISION FOUR OF THIS
 SECTION, AN EMPLOYER SHALL NOT, ALONE OR IN CONJUNCTION  WITH  AN  ELEC-
 TRONIC MONITORING TOOL, USE AN AUTOMATED EMPLOYMENT DECISION TOOL:
   (I)  IN  SUCH A MANNER THAT RESULTS IN A VIOLATION OF LABOR OR EMPLOY-
 MENT LAW;
   (II) IN SUCH A MANNER AS TO UNDULY INTENSIFY THE CONDITIONS OF WORK OR
 TO HARM THE HEALTH AND SAFETY OF EMPLOYEES, INCLUDING BY SETTING  UNREA-
 SONABLE PRODUCTIVITY QUOTAS;
   (III)  TO  MAKE PREDICTIONS ABOUT AN EMPLOYEE OR CANDIDATE FOR EMPLOY-
 MENT'S BEHAVIOR, BELIEFS, INTENTIONS, PERSONALITY, EMOTIONAL  STATE,  OR
 OTHER CHARACTERISTIC OR BEHAVIOR;
   (IV)  TO PREDICT, INTERFERE WITH, RESTRAIN, OR COERCE EMPLOYEES ENGAG-
 ING IN ACTIVITY PROTECTED UNDER LABOR AND EMPLOYMENT LAW;
 A. 8328                             8
 
   (V) TO IMPLEMENT A DYNAMIC WAGE-SETTING  SYSTEM  THAT  PAYS  EMPLOYEES
 DIFFERENT WAGES FOR THE SAME WORK;
   (VI)  TO SUBTRACT FROM AN EMPLOYEE'S WAGES TIME SPENT EXERCISING THEIR
 LEGAL RIGHTS; OR
   (VII) THAT INVOLVES FACIAL RECOGNITION, GAIT, OR  EMOTION  RECOGNITION
 TECHNOLOGIES.
   (B)  AN  EMPLOYER  SHALL  NOT  RELY SOLELY ON OUTPUT FROM AN AUTOMATED
 EMPLOYMENT DECISION TOOL WHEN  MAKING  HIRING,  PROMOTION,  TERMINATION,
 DISCIPLINARY, OR COMPENSATION DECISIONS.
   (I)  AN EMPLOYER SHALL ESTABLISH MEANINGFUL HUMAN OVERSIGHT OF HIRING,
 PROMOTION, TERMINATION, DISCIPLINARY OR COMPENSATION DECISIONS  ASSISTED
 OR  REPLACED  BY  AUTOMATED  EMPLOYMENT DECISION TOOLS. MEANINGFUL HUMAN
 OVERSIGHT REQUIRES:
   (A) THE DESIGNATION OF AN INTERNAL REVIEWER WITH SUFFICIENT  EXPERTISE
 IN  THE  OPERATION  OF  AUTOMATED  EMPLOYMENT DECISION TOOLS, SUFFICIENT
 FAMILIARITY WITH THE RESULTS OF  THE  MOST  RECENT  BIAS  AUDIT  OF  THE
 EMPLOYER'S  TOOL,  AND  SUFFICIENT  UNDERSTANDING  OF THE OUTPUTS OF THE
 EMPLOYER'S TOOL TO IDENTIFY POTENTIAL ERRORS, DISCREPANCIES, OR  INACCU-
 RACIES PRODUCED BY THE TOOL;
   (B)  THAT SUFFICIENT AUTHORITY AND DISCRETION BE GRANTED TO THE DESIG-
 NATED INTERNAL REVIEWER TO DISPUTE, RERUN, OR RECOMMEND THE REJECTION OF
 AN OUTPUT SUSPECTED TO BE INVALID, INACCURATE, OR DISCRIMINATORY; AND
   (C) THAT THE DESIGNATED INTERNAL REVIEWER HAS THE TIME  AND  RESOURCES
 AVAILABLE  TO  REVIEW  AND  EVALUATE  THE TOOL OUTPUT IN ACCORDANCE WITH
 CLAUSE (B) OF THIS SUBPARAGRAPH.
   (II) AN EMPLOYER  SHALL  CONSIDER  INFORMATION  OTHER  THAN  AUTOMATED
 EMPLOYMENT  DECISION  TOOL OUTPUTS WHEN MAKING HIRING, PROMOTION, TERMI-
 NATION, DISCIPLINARY, OR COMPENSATION DECISIONS, SUCH AS SUPERVISORY  OR
 MANAGERIAL EVALUATIONS, PERSONNEL FILES, EMPLOYEE WORK PRODUCTS, OR PEER
 REVIEWS.
   (C)  AN  EMPLOYER  MAY NOT, WHERE EMPLOYEES HAVE UNION REPRESENTATION,
 REFUSE TO BARGAIN OVER THE USE OF AUTOMATED EMPLOYMENT DECISION TOOLS.
   (D) AN EMPLOYER SHALL NOT REQUIRE EMPLOYEES OR CANDIDATES  THAT  APPLY
 FOR  A  POSITION  OF  EMPLOYMENT  TO  CONSENT TO THE USE OF AN AUTOMATED
 EMPLOYMENT  DECISION   TOOL IN AN EMPLOYMENT DECISION  IN  ORDER  TO  BE
 CONSIDERED  FOR AN EMPLOYMENT DECISION, NOR SHALL AN EMPLOYER DISCIPLINE
 OR  DISADVANTAGE  AN  EMPLOYEE  OR CANDIDATE FOR EMPLOYMENT SOLELY AS  A
 RESULT OF THEIR REQUEST FOR ACCOMMODATION.
   7.  (A)  AN EMPLOYER SHALL OFFER EMPLOYEES AND CANDIDATES A MEANINGFUL
 OPPORTUNITY TO REQUEST A REEVALUATION OF THE RESULTS  OF  AN  EMPLOYMENT
 DECISION  MADE  OR ASSISTED BY AN AUTOMATED EMPLOYMENT DECISION TOOL, IF
 AN EMPLOYEE OR CANDIDATE BELIEVES OR SUSPECTS THAT THE DECISION RESULTED
 FROM INACCURACY, ERROR, OR BIAS IN THE TOOL, THAT THE TOOL WAS  USED  AS
 THE  SOLE BASIS FOR THE DECISION, OR THAT THE EMPLOYER'S USE OF THE TOOL
 IN SOME OTHER WAY VIOLATES THE  PROVISIONS  OF  THIS  SECTION,  AND  THE
 EMPLOYEE  OR  CANDIDATE  WAS  MEANINGFULLY  HARMED BY THE OUTCOME OF THE
 EMPLOYMENT DECISION. AN EMPLOYEE OR CANDIDATE SHALL WITHIN  THIRTY  DAYS
 OF BEING NOTIFIED OF THE EMPLOYMENT DECISION PROVIDE THE EMPLOYER WITH A
 WRITTEN REQUEST FOR REEVALUATION. SUCH WRITTEN REQUEST SHALL INCLUDE:
   (I)  THE  PERSON'S NAME, THE EMPLOYMENT DECISION AT ISSUE, AND HOW THE
 PERSON WAS HARMED BY THE OUTCOME OF THE EMPLOYMENT DECISION;
   (II) WHY THE PERSON BELIEVES OR SUSPECTS THE EMPLOYMENT  DECISION  WAS
 INFORMED  BY  AN INACCURATE, ERRONEOUS, OR BIASED OUTPUT, WAS THE RESULT
 OF AN UNLAWFUL SOLE RELIANCE ON AN AUTOMATED EMPLOYMENT  DECISION  TOOL,
 OR OTHERWISE VIOLATED THE PROVISIONS OF THIS SECTION;
 A. 8328                             9
 
   (III)  ANY EVIDENCE THAT MAY SUPPORT THE PERSON'S BELIEF OR SUSPICION;
 AND
   (IV) WHAT REASONABLE REMEDIAL ACTION THE PERSON WOULD LIKE THE EMPLOY-
 ER  TO  TAKE  TO  INVESTIGATE  OR REMEDY THE BELIEVED OR SUSPECTED HARM,
 WHICH MAY INCLUDE PROVIDING THE EMPLOYEE OR CANDIDATE  WITH  OUTPUTS  OR
 DOCUMENTATION  ASSOCIATED  WITH  THE  EMPLOYMENT DECISION, PROVIDING THE
 EMPLOYEE OR CANDIDATE WITH DOCUMENTATION ABOUT THE  TOOL'S  MOST  RECENT
 BIAS AUDIT, OR REPROCESSING THE EMPLOYEE OR CANDIDATE'S DATA THROUGH THE
 TOOL.
   (B) AN EMPLOYER SHALL RESPOND IN WRITING TO AN EMPLOYEE OR CANDIDATE'S
 WRITTEN  REQUEST  FOR  REEVALUATION WITHIN SIXTY DAYS OF RECEIPT OF SUCH
 REQUEST. SUCH WRITTEN RESPONSE SHALL INCLUDE:
   (I) ANY EMPLOYMENT DECISION TOOL OUTPUTS REGARDING THE PERSON PURPORT-
 ING TO BE HARMED BY THE EMPLOYMENT DECISION THAT WERE USED IN THE MAKING
 OF THE EMPLOYMENT DECISION;
   (II) A DESCRIPTION OF THE INFORMATION OTHER THAN THE AUTOMATED EMPLOY-
 MENT DECISION TOOL OUTPUT THAT CONTRIBUTED TO THE EMPLOYMENT DECISION;
   (III) WHETHER THE EMPLOYER AGREES WITH  THE  EMPLOYEE  OR  CANDIDATE'S
 BELIEF  OR  SUSPICION  THAT  THE DECISION WAS INFORMED BY AN INACCURATE,
 ERRONEOUS, OR BIASED TOOL OR OUTPUT, THAT THE TOOL WAS THE UNLAWFUL SOLE
 BASIS FOR THE DECISION, OR THAT  THE  EMPLOYER  OTHERWISE  VIOLATED  THE
 PROVISIONS OF THIS SECTION IN ITS USE OF THE TOOL, AND WHY OR WHY NOT;
   (IV) IF THE EMPLOYER DISAGREES WITH THE EMPLOYEE OR CANDIDATE'S BELIEF
 OR  SUSPICION, ANY EVIDENCE SUPPORTING THE TOOL OR OUTPUT'S ACCURACY AND
 VALIDITY, THE EXISTENCE OF MEANINGFUL HUMAN OVERSIGHT,  OR  THE  USE  OF
 BASES OTHER THAN THE TOOL IN THE MAKING OF THE DECISION;
   (V)  IF  THE EMPLOYEE OR CANDIDATE REQUESTED THE REPROCESSING OF THEIR
 DATA THROUGH THE TOOL, THE RESULTS OR OUTPUTS OF THAT REPROCESSING,  AND
 WHETHER  THE  RESULTS  OF  THE  REPROCESSING HAVE CHANGED THE EMPLOYER'S
 EMPLOYMENT DECISION, AND WHY OR WHY NOT; AND
   (VI) IF THE EMPLOYER REFUSES TO TAKE ANY  REASONABLE  REMEDIAL  ACTION
 REQUESTED BY THE EMPLOYEE OR CANDIDATE, WHY THEY REFUSE TO DO SO.
   8.  (A)  IF AN EMPLOYER FAILS TO RESPOND TO AN EMPLOYEE OR CANDIDATE'S
 REQUEST FOR REEVALUATION, OR IF THE EMPLOYEE OR CANDIDATE  CONTINUES  TO
 HAVE  REASON TO BELIEVE THEY WERE HARMED BY THE UNLAWFUL USE OF AN INAC-
 CURATE OR BIASED AUTOMATED EMPLOYMENT DECISION TOOL OR  OTHER  VIOLATION
 OF  THIS  SECTION, THE EMPLOYEE OR CANDIDATE MAY INITIATE AN ACTION IN A
 COURT OF COMPETENT  JURISDICTION  TO  ENFORCE  THE  PROVISIONS  OF  THIS
 SECTION.  AN  EMPLOYER  THAT  VIOLATES  THIS SECTION SHALL BE LIABLE FOR
 ACTUAL DAMAGES TO ANY EMPLOYEE OR CANDIDATE THAT  HAS  SUFFERED  DAMAGES
 DUE TO SUCH VIOLATION, REASONABLE ATTORNEYS' FEES AND COSTS, AND, UNLESS
 THE  EMPLOYER PROVES A GOOD FAITH BASIS TO BELIEVE THAT ITS ACTIONS WERE
 IN COMPLIANCE WITH THE LAW, ONE HUNDRED PERCENT OF THE TOTAL  AMOUNT  OF
 ACTUAL  DAMAGES,  EXCEPT  SUCH  LIQUIDATED  DAMAGES  MAY  BE UP TO THREE
 HUNDRED PERCENT IF FOUND THAT THE ACTIONS WERE WILLFUL.
   (B) IN ANY CIVIL ACTION CLAIMING THAT AN EMPLOYER  HAS  VIOLATED  THIS
 SECTION  IN  ITS  USE  OF  ELECTRONIC MONITORING OR AUTOMATED EMPLOYMENT
 DECISION TOOLS, ANY PERSON, EMPLOYER, VENDOR, OR OTHER  BUSINESS  ENTITY
 THAT USED, SOLD, DISTRIBUTED, OR DEVELOPED THE TOOL SHALL BE JOINTLY AND
 SEVERALLY  LIABLE  TO  A PREVAILING PLAINTIFF FOR ALL DAMAGES AWARDED TO
 THAT PREVAILING PLAINTIFF, EXCEPT THAT WHERE A PERSON, EMPLOYER, VENDOR,
 OR OTHER BUSINESS ENTITY KNOWINGLY SELLS,  PROVIDES,  OR  DISTRIBUTES  A
 TOOL TO AN EMPLOYER WITH FEWER THAN FIFTY EMPLOYEES, THE VENDOR, NOT THE
 SMALL EMPLOYER, SHALL BE LIABLE FOR ANY UNLAWFUL ACTS.
   9.  (A)  ANY  PERSON WHO VIOLATES ANY PROVISION OF THIS SECTION OR ANY
 RULE PROMULGATED PURSUANT TO THIS SECTION IS LIABLE FOR A CIVIL  PENALTY
 A. 8328                            10
 
 OF  NOT  MORE  THAN  FIVE HUNDRED DOLLARS FOR A FIRST VIOLATION AND EACH
 ADDITIONAL VIOLATION OCCURRING ON THE SAME DAY AS THE  FIRST  VIOLATION,
 AND  NOT  LESS  THAN  FIVE HUNDRED DOLLARS NOR MORE THAN FIFTEEN HUNDRED
 DOLLARS FOR EACH SUBSEQUENT VIOLATION.
   (B)  EACH  DAY  ON  WHICH  AN  ELECTRONIC MONITORING TOOL OR AUTOMATED
 EMPLOYMENT DECISION TOOL IS USED IN VIOLATION OF THIS SECTION SHALL GIVE
 RISE TO A SEPARATE VIOLATION OF THIS SECTION.
   (C) FAILURE TO PROVIDE ANY NOTICE TO A CANDIDATE  OR  AN  EMPLOYEE  IN
 VIOLATION  OF SUBDIVISION TWO OR FIVE OF THIS SECTION SHALL CONSTITUTE A
 SEPARATE VIOLATION.
   (D) A PROCEEDING TO RECOVER  ANY  CIVIL  PENALTY  AUTHORIZED  BY  THIS
 SECTION  IS  RETURNABLE  TO  ANY  TRIBUNAL ESTABLISHED WITHIN ANY AGENCY
 DESIGNATED TO CONDUCT SUCH PROCEEDINGS,  OR,  IN  A  CITY  OF  OVER  ONE
 MILLION  IN  POPULATION,  SUCH  HEARING MAY BE HELD BY A HEARING OFFICER
 EMPLOYED WITHIN THE OFFICE OF ADMINISTRATIVE TRIALS AND HEARINGS.
   10. THE ATTORNEY GENERAL MAY INITIATE IN A COURT OF  COMPETENT  JURIS-
 DICTION  ACTION  THAT  MAY BE APPROPRIATE OR NECESSARY FOR CORRECTION OF
 ANY VIOLATION OF THIS SECTION, INCLUDING MANDATING COMPLIANCE  WITH  THE
 PROVISIONS OF THIS SECTION OR SUCH OTHER RELIEF AS MAY BE APPROPRIATE.
   11.  THE PROVISIONS OF THIS SECTION SHALL NOT BE CONSTRUED AS TO LIMIT
 THE AUTHORITY OF THE DIVISION OF HUMAN RIGHTS TO ENFORCE THE  PROVISIONS
 OF ARTICLE FIFTEEN OF THE EXECUTIVE LAW.
   §  2. (a) The department of labor shall promulgate any rules and regu-
 lations necessary to implement the provisions of this section.
   (b) The department of labor shall within one hundred  eighty  days  of
 this act becoming a law have established a means of collecting, storing,
 and  making  publicly  available  any  bias  audits or summaries of bias
 audits submitted by employers or vendors in the state.  Such  department
 shall  promulgate  rules and regulations by which employers, vendors, or
 employees may request the redaction of  certain  information  from  said
 bias  audits  or  summaries thereof, if that information is proprietary,
 sensitive, or poses a threat to the privacy of employees or candidates.
   § 3. Section 52-c of the civil rights law, as added by chapter 583  of
 the  laws  of 2021, is renumbered section 52-e and is amended to read as
 follows:
   § 52-e. Employers  engaged  in  electronic  monitoring;  prior  notice
 required.  1.  For purposes of this section, employer means any individ-
 ual, corporation, partnership, firm, or  association  with  a  place  of
 business  in  the state. It shall not include the state or any political
 subdivision of the state.
   2. (a) Any employer who monitors  or  otherwise  intercepts  telephone
 conversations  or  transmissions,  electronic  mail or transmissions, or
 internet access or usage of or by an employee by any  electronic  device
 or  system,  including  but  not limited to the use of a computer, tele-
 phone, wire, radio, or electromagnetic, photoelectronic or photo-optical
 systems, shall give prior written notice upon hiring  to  all  employees
 who  are  subject  to electronic monitoring. The notice required by this
 subdivision shall be in writing, in an electronic record, or in  another
 electronic  form  and  acknowledged by the employee either in writing or
 electronically. Each employer shall also post the notice  of  electronic
 monitoring in a conspicuous place which is readily available for viewing
 by its employees who are subject to electronic monitoring.  SUCH WRITTEN
 NOTICE  SHALL COMPLY WITH THE REQUIREMENTS OF SUBDIVISION TWO OF SECTION
 TWO HUNDRED THREE-G OF THE LABOR LAW.
   (b) For purposes of written notice required by paragraph (a)  of  this
 subdivision,  an  employee  shall  be advised that any and all telephone
 A. 8328                            11

 conversations or transmissions, electronic  mail  or  transmissions,  or
 internet  access  or  usage  by  an employee by any electronic device or
 system, including but not limited to the use of a  computer,  telephone,
 wire, radio or electromagnetic, photoelectronic or photo-optical systems
 may  be  subject  to  monitoring  at any and all times and by any lawful
 means.
   3. The attorney general may enforce the provisions  of  this  section.
 Any  employer  found to be in violation of this section shall be subject
 to a maximum civil  penalty  of  five  hundred  dollars  for  the  first
 offense,  one thousand dollars for the second offense and three thousand
 dollars for the third and each subsequent offense.
   4. The provisions of this section shall not apply  to  processes  that
 are  designed to manage the type or volume of incoming or outgoing elec-
 tronic mail or telephone voice mail or  internet  usage,  that  are  not
 targeted  to monitor or intercept the electronic mail or telephone voice
 mail or  internet  usage  of  a  particular  individual,  and  that  are
 performed  solely  for the purpose of computer system maintenance and/or
 protection.
   § 4. This act shall take effect on the one hundred eightieth day after
 it shall have become a law.