NY State Senate Bill 2023-S1802

Senate Bill S1802

2023-2024 Legislative Session

Establishes the employee privacy act prohibiting employers from using the federal electronic employment verification system to check the employment authorization status of an existing employee or an applicant

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Current Bill Status - In Senate Committee Labor Committee

Introduced
- In Committee Assembly
- In Committee Senate
- On Floor Calendar Assembly
- On Floor Calendar Senate
- Passed Assembly
- Passed Senate
Delivered to Governor
Signed By Governor

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	Assembly Actions - Lowercase Senate Actions - UPPERCASE
Jan 03, 2024	referred to labor
Jan 17, 2023	referred to labor

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2023-S1802 (ACTIVE) - Details

Current Committee:: Senate Labor
Law Section:: Labor Law
Laws Affected:: Add §219-b, Lab L; add §99-z, Gen Muni L; amd §296, Exec L
Versions Introduced in Other Legislative Sessions:: 2019-2020: S6812
2021-2022: S3063

2023-S1802 (ACTIVE) - Summary

Prohibits employers from using the federal electronic employment verification system to check the employment authorization status of an existing employee or an applicant who has not been offered employment and prohibits municipalities from requiring employers to use the federal electronic employment verification system.

2023-S1802 (ACTIVE) - Sponsor Memo

                                 
BILL NUMBER: S1802

SPONSOR: RAMOS
 
TITLE OF BILL:

An act to amend the labor law, in relation to prohibiting employers from
using the federal electronic employment verification system to check the
employment authorization status of an existing employee or an applicant
who has not been offered employment; to amend the general municipal law,
in relation to prohibiting municipalities from requiring employers to
use the federal electronic employment verification system; and to amend
the executive law, in relation to defining unlawful discriminatory prac-
tices with regards to the electronic employment verification system

 
PURPOSE:

This bill prohibits employers from using the federal electronic employ-
ment verification system to check the employment authorization status of
an existing employee or an applicant who has not been offered employment
and requires employees to protect the privacy of potential employees for
which the employer is using a federal electronic employment verification
system.

 
SUMMARY OF PROVISIONS:

Section 1. Labor law is amended by adding a new section 219-b, the
Employee Privacy Act. Subsection A prevents employers from using E-Veri-
fy to check the status of an existing employee or on an applicant who
has not yet been offered employment. Subsection B expresses that nothing
in this section shall prohibit an employer from utilizing the federal
E-Verify system to check the employment authorization status of a person
who has been offered employment.  Subsection C describes the steps
employers enrolled in the E-Verify system shall take to ensure compli-
ance with all federally required training courses and tests related to
E-Verify and requires the employer to post notices in the workplace
indicating enrollment in E-Verify as well as a federal antidiscrimi-
nation notice. Subsection D makes it a violation of this Act to fail to
display notices by the DHS in a prominent place; to allow any employee
to use E-Verify without having completed all required training; to fail
to take reasonable steps to prevent an employee from circumventing the
training requirements; to use E-verify on job applicants prior to an
offer of employment; to terminate an employee or take any other adverse
employment action against an individual prior to receiving a final
nonconfirmation notice; to fail to follow the proper procedure regarding
tentative nonconfirmation notices; to fail to safeguard the information
contained in E-Verify and the means to access that system.

Subsection 2 requires employers to notify potential employees of a
tentative non-confirmation as soon as practicable within ten days.

Subsection 3 renders any claim that an employer refused to hire, segre-
gated, or acted with respect to recruitment, hiring, promotion, renewal
or employment, selection for training or apprenticeship, discharge,
discipline, tenure or terms, privileges, or conditions of employment
without following the procedures of the E-verify system may be brought
under section 296 of the New York State Human Rights Law. It is a
violation of this section for an individual to falsely pose as an
employer in order to access information through E-Verify.  This

subsection also establishes a minimum civil penalty of ten thousand
dollars for each violation of this section.

Subsection 4: establishes a civil penalty of not less than ten thousands
dollars for each violation of this section. Subsection 5 specifies that
this section of law is intended to prevent discrimination in employment
rather than to sanction the potential hiring and employment of persons
who are not authorized for employment under federal law.

Section 3 adds a new section 99-x to general municipal law to preempt
municipalities from requiring local use of E-Verify, provided that noth-
ing in this section shall be construed to prohibit an employer from
using E-Verify when required by federal law or as a condition of receiv-
ing federal funds or to check the employment authorization status of a
person who has been offered employment.

Section 3. This section amends general municipal law is amended to
include 99-x to deem E-verify unlawful.

Section 4 adds paragraph (i) to executive law section 296 subdivision 1
to include unlawful use of E-verify as a discriminatory practice.

Section 5. Effective date.

 
JUSTIFICATION:

Electronic Verification System (E-Verify) is a federal program, created
through the 1996 Immigration Reform and Control Act. E-Verify provides
employers with the ability to check their employees' immigration status.
Currently, New York State does not require employers to use E-verify.
However, employers can voluntarily use the program, and municipal
governments can opt to require employers to use the system. If the
E-verify system questions an employees' immigration status the employer
will then receive a TNC ("tentative non-confirmation") notice.

As mandated by law, employers must provide employees adequate time to
challenge a TNC notice. A USC1S-commissioned study found that 83 percent
of erroneous FN-Cs ("final non-confirmations") occurred because an
employer failed to notify an individual of a TNC.

This bill reiterates employers' obligation to notify their employees of
a TNC and will fine employers no less than $10,000 for failing to
provide notice. Also, this bill disallows municipalities from passing
ordinances requiring employers to use the e-verify system.

 
FISCAL IMPACT:

TBD

 
EFFECTIVE DATE:
This act shall take effect immediately.

2023-S1802 (ACTIVE) - Bill Text download pdf

                             
                     S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   1802
 
                        2023-2024 Regular Sessions
 
                             I N  S E N A T E
 
                             January 17, 2023
                                ___________
 
 Introduced  by  Sens.  RAMOS, GOUNARDES, JACKSON, MYRIE, SALAZAR -- 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 prohibiting employers from
   using  the  federal electronic employment verification system to check
   the employment authorization status of  an  existing  employee  or  an
   applicant  who  has  not been offered employment; to amend the general
   municipal law, in relation to prohibiting municipalities from  requir-
   ing  employers  to  use the federal electronic employment verification
   system; and to amend the executive law, in relation to defining unlaw-
   ful discriminatory practices with regards to the electronic employment
   verification system
 
   THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
 BLY, DO ENACT AS FOLLOWS:
 
   Section  1.  This act shall be known and may be cited as the "Employee
 Privacy Act".
   § 2. The labor law is amended by adding a new section 219-b to read as
 follows:
   § 219-B. RESTRICTIONS ON USE OF EMPLOYMENT VERIFICATION SYSTEM. 1. (A)
 EXCEPT AS REQUIRED BY FEDERAL LAW OR AS A CONDITION OF RECEIVING FEDERAL
 FUNDS, IT SHALL BE UNLAWFUL FOR AN EMPLOYER,  OR  ANY  OTHER  PERSON  OR
 ENTITY  TO  USE  THE  FEDERAL  ELECTRONIC EMPLOYMENT VERIFICATION SYSTEM
 KNOWN AS E-VERIFY AND ANY OTHER SUCCEEDING ELECTRONIC EMPLOYMENT VERIFI-
 CATION SYSTEM  TO CHECK THE EMPLOYMENT AUTHORIZATION STATUS OF AN EXIST-
 ING EMPLOYEE OR AN APPLICANT WHO HAS NOT BEEN OFFERED  EMPLOYMENT  AT  A
 TIME  OR  IN A MANNER NOT REQUIRED UNDER SUBSECTION (B) OF SECTION 1324A
 OF TITLE 8 OF THE UNITED STATES CODE OR NOT AUTHORIZED UNDER ANY FEDERAL
 AGENCY MEMORANDUM OF UNDERSTANDING GOVERNING THE USE OF A FEDERAL  ELEC-
 TRONIC EMPLOYMENT VERIFICATION SYSTEM.
   (B)  NOTHING IN THIS SECTION SHALL PROHIBIT AN EMPLOYER FROM UTILIZING
 THE FEDERAL E-VERIFY SYSTEM, IN ACCORDANCE WITH FEDERAL  LAW,  TO  CHECK
 THE  EMPLOYMENT  AUTHORIZATION  STATUS  OF A PERSON WHO HAS BEEN OFFERED
 EMPLOYMENT.
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets

                       [ ] is old law to be omitted.
                                                            LBD00612-01-3
 S. 1802                             2
 
   (C) UPON INITIAL ENROLLMENT IN AN  ELECTRONIC  EMPLOYMENT  ELIGIBILITY
 VERIFICATION  SYSTEM,  AN  EMPLOYER  ENROLLED  IN  E-VERIFY OR ANY OTHER
 FEDERAL  ELECTRONIC  EMPLOYMENT  ELIGIBILITY  VERIFICATION  SYSTEM  MUST
 ATTEST, UNDER PENALTY OF PERJURY, ON A FORM PRESCRIBED BY THE DEPARTMENT
 AVAILABLE ON THE DEPARTMENT'S WEBSITE:
   (I)  THAT  THE  EMPLOYER  HAS RECEIVED THE E-VERIFY TRAINING MATERIALS
 FROM THE DEPARTMENT OF HOMELAND SECURITY, AND  THAT  ALL  EMPLOYEES  WHO
 WILL  ADMINISTER  THE PROGRAM HAVE COMPLETED THE E-VERIFY COMPUTER-BASED
 TUTORIALS AND ALL OTHER REQUIRED TRAINING MATERIALS IN  ACCORDANCE  WITH
 FEDERAL REGULATIONS; AND
   (II)  THAT  THE  EMPLOYER HAS POSTED THE NOTICE FROM THE DEPARTMENT OF
 HOMELAND SECURITY INDICATING THAT THE EMPLOYER IS ENROLLED IN THE E-VER-
 IFY PROGRAM AND THE ANTI-DISCRIMINATION NOTICE ISSUED  BY  THE  EMPLOYEE
 AND  IMMIGRATION RIGHTS SECTION, CIVIL RIGHTS DIVISION, U.S.  DEPARTMENT
 OF JUSTICE IN A PROMINENT PLACE THAT IS CLEARLY VISIBLE TO BOTH PROSPEC-
 TIVE AND CURRENT  EMPLOYEES.  THE  EMPLOYER  MUST  MAINTAIN  THE  SIGNED
 ORIGINAL  OF  THE ATTESTATION FORM PRESCRIBED BY THE DEPARTMENT, AS WELL
 AS ALL REQUIRED TRAINING CERTIFICATES OF  COMPLETION,  INCLUDING  COMPU-
 TER-BASED TUTORIALS CERTIFICATES, AND MAKE THEM AVAILABLE FOR INSPECTION
 OR COPYING BY THE DEPARTMENT AT ANY REASONABLE TIME.
   (D)  IT  IS A VIOLATION OF THIS SECTION FOR AN EMPLOYER ENROLLED IN AN
 EMPLOYMENT  ELIGIBILITY  VERIFICATION  SYSTEM,  INCLUDING  THE  E-VERIFY
 PROGRAM  OR  A  SUCCESSOR  FEDERAL  ELECTRONIC  EMPLOYMENT  VERIFICATION
 PROGRAM, TO:
   (I) FAIL TO DISPLAY THE NOTICES SUPPLIED BY THE DEPARTMENT OF HOMELAND
 SECURITY AND THE EMPLOYEE AND IMMIGRATION RIGHTS SECTION IN A  PROMINENT
 PLACE THAT IS CLEARLY VISIBLE TO BOTH PROSPECTIVE AND CURRENT EMPLOYEES;
   (II) TO ALLOW ANY EMPLOYEE TO USE AN ELECTRONIC EMPLOYMENT ELIGIBILITY
 VERIFICATION  SYSTEM  PRIOR  TO  HAVING COMPLETED ALL REQUIRED COMPUTER-
 BASED TUTORIALS;
   (III) TO FAIL TO TAKE REASONABLE STEPS TO  PREVENT  AN  EMPLOYEE  FROM
 CIRCUMVENTING  THE  REQUIREMENT TO COMPLETE THE COMPUTER-BASED TUTORIALS
 AND/OR ALL OTHER TRAINING REQUIREMENTS BY  ASSUMING  ANOTHER  EMPLOYEE'S
 E-VERIFY USER IDENTIFICATION OR PASSWORD;
   (IV)  TO  USE THE EMPLOYMENT ELIGIBILITY VERIFICATION SYSTEM TO VERIFY
 THE EMPLOYMENT ELIGIBILITY OF JOB APPLICANTS PRIOR TO SIGNING AN EMPLOY-
 MENT CONTRACT OR TO OTHERWISE USE THE EMPLOYMENT  ELIGIBILITY  VERIFICA-
 TION SYSTEM TO SCREEN INDIVIDUALS PRIOR TO SIGNING A CONTRACT OF EMPLOY-
 MENT AND PRIOR TO THE COMPLETION OF A FORM I-9;
   (V)  TO  TERMINATE  AN  EMPLOYEE  OR TAKE ANY OTHER ADVERSE EMPLOYMENT
 ACTION AGAINST AN INDIVIDUAL PRIOR TO RECEIVING A FINAL  NONCONFIRMATION
 NOTICE  FROM  THE  SOCIAL  SECURITY  ADMINISTRATION OR THE DEPARTMENT OF
 HOMELAND SECURITY;
   (VI) TO FAIL TO NOTIFY AN INDIVIDUAL, IN WRITING,  OF  THE  EMPLOYER'S
 RECEIPT OF A TENTATIVE NONCONFIRMATION NOTICE, OF THE INDIVIDUAL'S RIGHT
 TO  CONTEST  THE  TENTATIVE  NONCONFIRMATION  NOTICE, AND OF THE CONTACT
 INFORMATION FOR THE RELEVANT GOVERNMENT  AGENCY  OR  AGENCIES  THAT  THE
 INDIVIDUAL  MUST CONTACT TO RESOLVE THE TENTATIVE NONCONFIRMATION NOTICE
 OR TO FAIL TO PROVIDE SUCH TENTATIVE NONCONFIRMATION NOTICE  IN  ACCORD-
 ANCE WITH SUBDIVISION TWO OF THIS SECTION; AND
   (VII) TO FAIL TO SAFEGUARD THE INFORMATION CONTAINED IN THE EMPLOYMENT
 ELIGIBILITY  VERIFICATION  SYSTEM, AND THE MEANS OF ACCESS TO THE SYSTEM
 (SUCH AS PASSWORDS AND OTHER PRIVACY  PROTECTIONS).  AN  EMPLOYER  SHALL
 ENSURE THAT THE SYSTEM IS NOT USED FOR ANY PURPOSE OTHER THAN EMPLOYMENT
 VERIFICATION OF NEWLY HIRED EMPLOYEES AND SHALL ENSURE THAT THE INFORMA-
 TION  CONTAINED  IN THE SYSTEM AND THE MEANS OF ACCESS TO THE SYSTEM ARE
 S. 1802                             3

 NOT DISSEMINATED TO ANY PERSON OTHER THAN EMPLOYEES WHO NEED SUCH INFOR-
 MATION AND WHO HAVE BEEN AUTHORIZED TO PERFORM VERIFICATION RESPONSIBIL-
 ITIES IN ACCORDANCE WITH THIS SECTION.
   2.  UPON  USING  THE  FEDERAL  E-VERIFY SYSTEM TO CHECK THE EMPLOYMENT
 AUTHORIZATION STATUS OF A PERSON, IF THE EMPLOYER RECEIVES  A  TENTATIVE
 NONCONFIRMATION  ISSUED  BY  THE  SOCIAL  SECURITY ADMINISTRATION OR THE
 UNITED STATES DEPARTMENT  OF  HOMELAND  SECURITY,  WHICH  INDICATES  THE
 INFORMATION  ENTERED  IN  E-VERIFY  DID  NOT  MATCH FEDERAL RECORDS, THE
 EMPLOYER SHALL COMPLY WITH THE REQUIRED EMPLOYEE NOTIFICATION PROCEDURES
 UNDER ANY MEMORANDUM OF UNDERSTANDING GOVERNING THE USE OF  THE  FEDERAL
 E-VERIFY  SYSTEM. THE EMPLOYER SHALL FURNISH TO THE EMPLOYEE ANY NOTIFI-
 CATION ISSUED BY THE SOCIAL SECURITY ADMINISTRATION OR THE UNITED STATES
 DEPARTMENT OF HOMELAND SECURITY CONTAINING INFORMATION SPECIFIC  TO  THE
 EMPLOYEE'S  E-VERIFY  CASE  OR ANY TENTATIVE NONCONFIRMATION NOTICE. THE
 NOTIFICATION SHALL BE FURNISHED AS SOON AS PRACTICABLE WITHIN  10  BUSI-
 NESS DAYS.
   3.  (A)  ANY  CLAIM  THAT  AN EMPLOYER REFUSED TO HIRE, SEGREGATED, OR
 ACTED WITH RESPECT TO RECRUITMENT, HIRING, PROMOTION, RENEWAL OR EMPLOY-
 MENT, SELECTION FOR TRAINING OR APPRENTICESHIP,  DISCHARGE,  DISCIPLINE,
 TENURE OR TERMS, PRIVILEGES, OR CONDITIONS OF EMPLOYMENT WITHOUT FOLLOW-
 ING  THE  PROCEDURES  OF THE EMPLOYMENT ELIGIBILITY VERIFICATION SYSTEM,
 INCLUDING THE E-VERIFY PROGRAM, MAY BE BROUGHT UNDER SECTION TWO HUNDRED
 NINETY-SIX OF THE EXECUTIVE LAW.
   (B) IT IS A VIOLATION OF THIS SECTION FOR  AN  INDIVIDUAL  TO  FALSELY
 POSE  AS  AN  EMPLOYER  IN  ORDER TO ENROLL IN AN EMPLOYMENT ELIGIBILITY
 VERIFICATION SYSTEM OR FOR AN EMPLOYER TO USE AN EMPLOYMENT  ELIGIBILITY
 VERIFICATION SYSTEM TO ACCESS INFORMATION REGARDING AN INDIVIDUAL WHO IS
 NOT AN EMPLOYEE OF THE EMPLOYER.
   4.  IN  ADDITION TO OTHER REMEDIES AVAILABLE, AN EMPLOYER WHO VIOLATES
 THIS SECTION SHALL BE LIABLE FOR A CIVIL PENALTY OF NOT  LESS  THAN  TEN
 THOUSAND  DOLLARS  FOR EACH VIOLATION OF THIS SECTION. EACH UNLAWFUL USE
 OF THE E-VERIFY SYSTEM ON AN EMPLOYEE OR APPLICANT  SHALL  CONSTITUTE  A
 SEPARATE VIOLATION.
   5.  THIS  SECTION  IS INTENDED TO PREVENT DISCRIMINATION IN EMPLOYMENT
 RATHER THAN TO SANCTION THE POTENTIAL HIRING AND EMPLOYMENT  OF  PERSONS
 WHO ARE NOT AUTHORIZED FOR EMPLOYMENT UNDER FEDERAL LAW.
   § 3. The general municipal law is amended by adding a new section 99-z
 to read as follows:
   §  99-Z.  USE OF EMPLOYMENT VERIFICATION SYSTEM.  IT SHALL BE UNLAWFUL
 FOR THE GOVERNING BOARD OF A CITY, TOWN  OR  VILLAGE  OR  ANY  MUNICIPAL
 CORPORATION  TO  ADOPT  A  RESOLUTION,  ORDINANCE OR LOCAL LAW REQUIRING
 EMPLOYERS TO USE THE FEDERAL ELECTRONIC EMPLOYMENT  VERIFICATION  SYSTEM
 KNOWN AS E-VERIFY; PROVIDED, HOWEVER, THAT NOTHING IN THIS SECTION SHALL
 BE  CONSTRUED  TO PROHIBIT AN EMPLOYER FROM USING THE FEDERAL ELECTRONIC
 EMPLOYMENT VERIFICATION SYSTEM WHEN REQUIRED BY  FEDERAL  LAW  OR  AS  A
 CONDITION OF RECEIVING FEDERAL FUNDS OR TO CHECK THE EMPLOYMENT AUTHORI-
 ZATION STATUS OF A PERSON WHO HAS BEEN OFFERED EMPLOYMENT.
   §  4.  Subdivision 1 of section 296 of the executive law is amended by
 adding a new paragraph (i) to read as follows:
   (I) FOR AN EMPLOYER PARTICIPATING IN THE E-VERIFY PROGRAM, AS  AUTHOR-
 IZED  BY 8 U.S.C. 1324A, TO REFUSE TO HIRE, TO SEGREGATE, OR TO ACT WITH
 RESPECT  TO  RECRUITMENT,  HIRING,  PROMOTION,  RENEWAL  OF  EMPLOYMENT,
 SELECTION  FOR TRAINING OR APPRENTICESHIP, DISCHARGE, DISCIPLINE, TENURE
 OR TERMS, PRIVILEGES OR CONDITIONS OF EMPLOYMENT WITHOUT  FOLLOWING  THE
 PROCEDURES UNDER THE E-VERIFY PROGRAM OR A SUCCESSOR PROGRAM.
   § 5. This act shall take effect immediately.

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