S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   7623
 
                        2023-2024 Regular Sessions
 
                             I N  S E N A T E
 
                              August 4, 2023
                                ___________
 
 Introduced  by Sen. HOYLMAN-SIGAL -- read twice and ordered printed, and
   when printed to be committed to the Committee on Rules
 
 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 technical 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-f to
 read as follows:
   § 203-F. 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,  DERIVED  FROM MACHINE LEARNING, STATISTICAL MODELING, DATA ANALYT-
 ICS, OR ARTIFICIAL INTELLIGENCE, THAT ISSUES SIMPLIFIED OUTPUT,  INCLUD-
 ING  A  SCORE,  CLASSIFICATION,  OR  RECOMMENDATION,  THAT  IS  USED  TO
 SUBSTANTIALLY ASSIST OR REPLACE DISCRETIONARY DECISION MAKING FOR MAKING
 EMPLOYMENT DECISIONS THAT IMPACT NATURAL PERSONS. "AUTOMATED  EMPLOYMENT
 DECISION  TOOL" DOES NOT INCLUDE A TOOL THAT DOES NOT AUTOMATE, SUPPORT,
 SUBSTANTIALLY ASSIST OR REPLACE DISCRETIONARY DECISION-MAKING  PROCESSES
 AND  THAT DOES NOT MATERIALLY IMPACT NATURAL PERSONS, INCLUDING, BUT NOT
 LIMITED TO, A JUNK EMAIL FILTER, FIREWALL, ANTIVIRUS SOFTWARE,  CALCULA-
 TOR, SPREADSHEET, DATABASE, DATA SET, OR OTHER COMPILATION OF DATA.
   (B) "BIAS AUDIT" MEANS AN IMPARTIAL EVALUATION BY AN INDEPENDENT AUDI-
 TOR.  SUCH BIAS AUDIT SHALL INCLUDE BUT NOT BE LIMITED TO THE TESTING OF
 AN  AUTOMATED  EMPLOYMENT  DECISION  TOOL TO ASSESS THE TOOL'S DISPARATE
 IMPACT ON PERSONS OF ANY COMPONENT 1 CATEGORY REQUIRED TO BE REPORTED BY
 EMPLOYERS PURSUANT TO SUBSECTION (C) OF SECTION 2000E-8 OF TITLE  42  OF
 THE  UNITED  STATES  CODE AS SPECIFIED IN PART 1602.7 OF TITLE 29 OF THE
 CODE OF FEDERAL REGULATIONS.
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
                                                            LBD11940-02-3
 S. 7623                             2
              

 
   (C) "ELECTRONIC MONITORING TOOL" MEANS ANY SYSTEM THAT FACILITATES THE
 COLLECTION OF DATA CONCERNING WORKER ACTIVITIES OR COMMUNICATIONS BY ANY
 MEANS OTHER THAN DIRECT OBSERVATION, INCLUDING THE USE  OF  A  COMPUTER,
 TELEPHONE,  WIRE,  RADIO,  CAMERA,  ELECTROMAGNETIC, PHOTOELECTRONIC, OR
 PHOTO-OPTICAL SYSTEM.
   (D)  "EMPLOYER  OR EMPLOYMENT AGENCY" MEANS ANY PERSON WHO DIRECTLY OR
 INDIRECTLY, OR THROUGH AN AGENT OR ANY OTHER PERSON,  EMPLOYS  OR  EXER-
 CISES  CONTROL OVER THE WAGES, BENEFITS, OTHER COMPENSATION HOURS, WORK-
 ING CONDITIONS, ACCESS TO WORK OR JOB OPPORTUNITIES, OR OTHER  TERMS  OR
 CONDITIONS  OF EMPLOYMENT, OF ANY WORKER. "EMPLOYER" INCLUDES ANY OF THE
 EMPLOYER'S LABOR CONTRACTORS.
   (E) "EMPLOYEE" MEANS ANY NATURAL PERSON OR THEIR AUTHORIZED  REPRESEN-
 TATIVE  ACTING  EMPLOYED  BY,  OR  AN  INDEPENDENT  CONTRACTOR PROVIDING
 SERVICE TO, OR THROUGH, A BUSINESS OPERATING IN THE STATE  AND  RESIDING
 IN THE STATE.
   (F) "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 FACTION,
 EMOTION, AND GAIT RECOGNITION;
   (F) INPUTS OF 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.
   (G) "EMPLOYMENT DECISION" MEANS ANY DECISION MADE BY THE EMPLOYER THAT
 AFFECTS WAGES,  BENEFITS,  OTHER  COMPENSATION,  HOURS,  WORK  SCHEDULE,
 PERFORMANCE  EVALUATION, HIRING, DISCIPLINE, PROMOTION, TERMINATION, JOB
 CONTENT, ASSIGNMENT OF WORK, ACCESS TO WORK OPPORTUNITIES,  PRODUCTIVITY
 S. 7623                             3
 
 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 DECISIONS BASED ON THEIR CONTRACT
 WITH OR RELATIONSHIP TO THE EMPLOYER.
   2. (A) IT SHALL BE UNLAWFUL FOR AN EMPLOYER OR AN EMPLOYMENT AGENCY TO
 USE  AN ELECTRONIC MONITORING TOOL TO SURVEIL EMPLOYEES RESIDING IN THIS
 STATE UNLESS:
   (I) THE ELECTRONIC MONITORING TOOL IS PRIMARILY INTENDED TO ACCOMPLISH
 ANY OF THE FOLLOWING ALLOWABLE PURPOSES:
   (A) ALLOWING A WORKER TO ACCOMPLISH AN ESSENTIAL JOB FUNCTION;
   (B) MONITORING PRODUCTION PROCESSES OR QUALITY;
   (C) ASSESSMENT OF WORKER PERFORMANCE;
   (D) ENSURING COMPLIANCE WITH  EMPLOYMENT,  LABOR,  OR  OTHER  RELEVANT
 LAWS;
   (E) PROTECTING THE HEALTH, SAFETY, OR SECURITY OF WORKERS;
   (F) ADMINISTERING WAGES AND BENEFITS; OR
   (G) ADDITIONAL PURPOSES TO ENABLE BUSINESS OPERATIONS AS DETERMINED BY
 THE DEPARTMENT; AND
   (II)  THE  SPECIFIC  TYPE  OF  ELECTRONIC  MONITORING TOOL IS STRICTLY
 NECESSARY TO ACCOMPLISH THE ALLOWABLE PURPOSE AND IS THE LEAST  INVASIVE
 MEANS  TO  THE  EMPLOYEE THAT COULD REASONABLY BE USED TO ACCOMPLISH THE
 ALLOWABLE 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 ALLOWABLE PURPOSE.
   (B) ANY EMPLOYER THAT USES AN ELECTRONIC MONITORING TOOL SHALL  NOTIFY
 EMPLOYEES  IT  INTENDS TO SUBJECT TO ELECTRONIC MONITORING WHO RESIDE IN
 THE STATE THAT THEY WILL BE  SUBJECT  TO  SUCH  MONITORING  PURSUANT  TO
 SUBDIVISION  TWO  OF  SECTION  FIFTY-TWO-C OF THE CIVIL RIGHTS LAW. SUCH
 NOTICE SHALL INCLUDE, AT A MINIMUM, THE FOLLOWING:
   (I) A DESCRIPTION OF THE ALLOWABLE PURPOSE FOR  WHICH  THE  ELECTRONIC
 MONITORING  TOOL WILL BE USED, AS SPECIFIED IN SUBPARAGRAPH (I) OF PARA-
 GRAPH (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 ANY EMPLOYEE DATA COLLECTED BY THE ELECTRONIC  MONITORING
 TOOL WILL BE USED AS AN INPUT IN AN AUTOMATED EMPLOYMENT DECISION TOOL;
   (V)  WHETHER  ANY EMPLOYEE DATA COLLECTED BY THE ELECTRONIC MONITORING
 TOOL WILL ALONE OR IN CONJUNCTION WITH AN AUTOMATED EMPLOYMENT  DECISION
 TOOL BE USED TO INFORM AN EMPLOYMENT DECISION BY THE EMPLOYER OR EMPLOY-
 MENT 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;
   (VII)  A DESCRIPTION OF WHERE ANY EMPLOYEE DATA COLLECTED BY THE ELEC-
 TRONIC MONITORING TOOL  WILL  BE  STORED  AND  THE  LENGTH  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 ALLOWABLE
 MONITORING PURPOSE.
   (C) AN EMPLOYER OR AN EMPLOYMENT AGENCY SHALL NOT  USE  EMPLOYEE  DATA
 COLLECTED  VIA  AN  ELECTRONIC  MONITORING  TOOL FOR PURPOSES OTHER THAN
 S. 7623                             4
 
 THOSE SPECIFIED IN THE NOTICE PROVIDED PURSUANT TO PARAGRAPH (B) OF THIS
 SUBDIVISION.
   (D)  AN  EMPLOYER OR AN EMPLOYMENT AGENCY SHALL NOT SELL, TRANSFER, OR
 DISCLOSE EMPLOYEE DATA COLLECTED VIA AN ELECTRONIC  MONITORING  TOOL  TO
 ANY OTHER ENTITY UNLESS REQUIRED TO DO SO UNDER STATE OR FEDERAL LAW.
   (E)  AN  EMPLOYER  OR  AN EMPLOYMENT AGENCY SHALL DESTROY ANY EMPLOYEE
 DATA COLLECTED VIA  AN  ELECTRONIC  MONITORING  TOOL  WHEN  THE  INITIAL
 PURPOSE  FOR COLLECTING THE DATA HAS BEEN SATISFIED OR AT THE END OF THE
 WORKER'S RELATIONSHIP WITH THE EMPLOYER, UNLESS THERE  IS  A  REASONABLE
 INTEREST  FOR  THE  WORKER TO ACCESS THE DATA AFTER THE RELATIONSHIP HAS
 ENDED.
   (F) 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.
   (G) (I) AN EMPLOYER WHO ENGAGES IN RANDOM OR PERIODIC ELECTRONIC MONI-
 TORING OF WORKERS SHALL INFORM THE  AFFECTED  WORKERS  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 WORKERS, CUSTOMERS, OR THE PUBLIC.
   (H) 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.
   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  UNDULY
 OR  EXTREMELY INTENSIFY THE CONDITIONS OF WORK OR TO HARM THE HEALTH AND
 SAFETY 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 OR POLITICAL 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,
 S. 7623                             5
 
 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;
   (X)  DISCIPLINE  OR  TERMINATE THE EMPLOYMENT OF AN EMPLOYEE SOLELY ON
 THE BASIS OF THEIR REFUSAL TO COMPLY TO THE COLLECTION OF THEIR DATA  BY
 AN ELECTRONIC MONITORING TOOL; OR
   (XI) WHERE EMPLOYEES HAVE UNION REPRESENTATION, REFUSE TO BARGAIN OVER
 THE USE OF ELECTRONIC MONITORING TOOLS.
   (B)  AN  EMPLOYER  SHALL  NOT  RELY  SOLELY ON EMPLOYEE DATA COLLECTED
 THROUGH ELECTRONIC MONITORING  WHEN  MAKING  HIRING,  PROMOTION,  TERMI-
 NATION, DISCIPLINARY, OR COMPENSATION DECISIONS.
   (I) AN EMPLOYER SHALL CONDUCT ITS OWN ASSESSMENT BEFORE MAKING HIRING,
 PROMOTION, TERMINATION, OR DISCIPLINARY DECISIONS INDEPENDENT OF EMPLOY-
 EE  DATA  GATHERED  THROUGH ELECTRONIC MONITORING. THIS INCLUDES CORROB-
 ORATING THE ELECTRONIC MONITORING EMPLOYEE DATA BY OTHER MEANS,  INCLUD-
 ING A SUPERVISOR'S DOCUMENTATION OR MANAGERIAL DOCUMENTATION.
   (II) IF AN EMPLOYER CANNOT INDEPENDENTLY CORROBORATE THE EMPLOYEE DATA
 GATHERED THROUGH ELECTRONIC MONITORING, THE EMPLOYER SHALL NOT RELY UPON
 THAT  DATA  IN  MAKING  HIRING,  PROMOTION, TERMINATION, OR DISCIPLINARY
 DECISIONS.
   (C) THE INFORMATION AND JUDGMENTS INVOLVED IN  AN  EMPLOYER'S  CORROB-
 ORATION  OR  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.
   (D)  DATA  THAT PROVIDES EVIDENCE OF CRIMINAL ACTIVITY, WHEN INDEPEND-
 ENTLY CORROBORATED BY THE EMPLOYER, IS EXEMPT FROM THIS SUBDIVISION.
   4. IT SHALL BE UNLAWFUL FOR AN EMPLOYER OR AN EMPLOYMENT AGENCY TO USE
 AN AUTOMATED EMPLOYMENT DECISION TOOL FOR AN EMPLOYMENT DECISION UNLESS:
   (A) SUCH TOOL HAS BEEN THE SUBJECT OF A BIAS AUDIT CONDUCTED  NO  MORE
 THAN ONE YEAR PRIOR TO THE USE OF SUCH TOOL; AND
   (B)  A  SUMMARY  OF  THE RESULTS OF THE MOST RECENT BIAS AUDIT OF SUCH
 TOOL AS WELL AS THE DISTRIBUTION DATE OF THE TOOL TO  WHICH  SUCH  AUDIT
 APPLIES  HAS BEEN MADE PUBLICLY AVAILABLE ON THE WEBSITE OF THE EMPLOYER
 OR EMPLOYMENT AGENCY PRIOR TO THE USE OF SUCH TOOL.
   5. (A) ANY EMPLOYER  OR  EMPLOYMENT  AGENCY  THAT  USES  AN  AUTOMATED
 EMPLOYMENT  DECISION TOOL TO SCREEN OR OTHERWISE EVALUATE AN EMPLOYEE OR
 A CANDIDATE WHO HAS APPLIED FOR A POSITION FOR  AN  EMPLOYMENT  DECISION
 SHALL NOTIFY EACH SUCH EMPLOYEE OR CANDIDATE WHO RESIDES IN THE STATE OF
 THE FOLLOWING:
   (I)  THAT  AN  AUTOMATED  EMPLOYMENT  DECISION  TOOL  WILL  BE USED IN
 CONNECTION WITH THE ASSESSMENT OR EVALUATION OF SUCH EMPLOYEE OR  CANDI-
 DATE  WHO  RESIDES  IN THE STATE. SUCH NOTICE SHALL BE MADE NO LESS THAN
 TEN BUSINESS DAYS BEFORE SUCH USE AND ALLOW A CANDIDATE  TO  REQUEST  AN
 ALTERNATIVE SELECTION PROCESS OR ACCOMMODATION THAT DOES NOT INVOLVE THE
 USE OF AN AUTOMATED EMPLOYMENT DECISION TOOL;
   (II)  THE  JOB  QUALIFICATIONS AND CHARACTERISTICS THAT SUCH AUTOMATED
 EMPLOYMENT DECISION TOOL WILL USE IN THE ASSESSMENT OF SUCH CANDIDATE OR
 EMPLOYEE, AND ANY OUTPUTS THE TOOL WILL PRODUCE AS AN EVALUATION OF SUCH
 S. 7623                             6
 
 CANDIDATE OR EMPLOYEE. SUCH NOTICE SHALL BE MADE NO LESS THAN TEN  BUSI-
 NESS DAYS BEFORE SUCH USE; AND
   (III) IF NOT DISCLOSED ON THE EMPLOYER OR EMPLOYMENT AGENCY'S WEBSITE,
 INFORMATION  ABOUT  THE TYPE OF DATA COLLECTED FOR THE AUTOMATED EMPLOY-
 MENT DECISION TOOL, THE SOURCE OF SUCH DATA AND THE EMPLOYER OR  EMPLOY-
 MENT  AGENCY'S  DATA  RETENTION  POLICY  SHALL BE AVAILABLE UPON WRITTEN
 REQUEST BY A CANDIDATE OR EMPLOYEE. SUCH INFORMATION SHALL  BE  PROVIDED
 WITHIN  THIRTY DAYS OF THE WRITTEN REQUEST. INFORMATION PURSUANT TO THIS
 SECTION SHALL NOT BE  DISCLOSED  WHERE  SUCH  DISCLOSURE  WOULD  VIOLATE
 LOCAL, STATE, OR FEDERAL LAW, OR INTERFERE WITH A LAW ENFORCEMENT INVES-
 TIGATION.
   (B)  AN  EMPLOYER SHALL NOT REQUIRE EMPLOYEES OR CANDIDATES THAT APPLY
 FOR A POSITION OF EMPLOYMENT TO CONSENT TO THE USE OF AUTOMATED  EMPLOY-
 MENT  DECISION  TOOL IN AN EMPLOYMENT DECISION IN ORDER TO BE CONSIDERED
 FOR AN EMPLOYMENT DECISION, NOR SHALL AN EMPLOYER DISCIPLINE  OR  DISAD-
 VANTAGE  AN  EMPLOYEE  OR CANDIDATE FOR EMPLOYMENT SOLELY AS A RESULT OF
 THEIR REQUEST FOR ACCOMMODATION.
   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 OR EXTREMELY INTENSIFY THE CONDI-
 TIONS OF WORK OR TO HARM THE HEALTH AND SAFETY OF  EMPLOYEES,  INCLUDING
 BY SETTING UNREASONABLE 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 UNRELATED TO THE EMPLOYEE'S ESSENTIAL
 JOB FUNCTIONS;
   (IV) TO PREDICT, INTERFERE WITH, RESTRAIN, OR COERCE EMPLOYEES  ENGAG-
 ING IN ACTIVITY PROTECTED UNDER LABOR AND EMPLOYMENT LAW;
   (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  DRAWS ON 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 CONDUCT  ITS  OWN  EVALUATION  OF  THE  EMPLOYEE
 BEFORE  MAKING A HIRING, PROMOTION, TERMINATION, DISCIPLINARY OR COMPEN-
 SATION DECISION, INDEPENDENT OF  THE  OUTPUT  USED  FROM  THE  AUTOMATED
 EMPLOYMENT  DECISION  TOOL.  THIS INCLUDES ESTABLISHING MEANINGFUL HUMAN
 OVERSIGHT BY A DESIGNATED INTERNAL REVIEWER TO CORROBORATE THE AUTOMATED
 EMPLOYMENT DECISION TOOL OUTPUT BY OTHER MEANS, INCLUDING SUPERVISORY OR
 MANAGERIAL  DOCUMENTATION,  PERSONNEL  FILES,  OR  THE  CONSULTATION  OF
 COWORKERS.
   (II)  MEANINGFUL HUMAN OVERSIGHT REQUIRES THAT THE DESIGNATED INTERNAL
 REVIEWER MEET THE FOLLOWING CONDITIONS:
   (A) THE DESIGNATED INTERNAL REVIEWER IS GRANTED SUFFICIENT  AUTHORITY,
 DISCRETION,  RESOURCES, AND TIME TO CORROBORATE THE AUTOMATED EMPLOYMENT
 DECISION TOOL OUTPUT.
   (B) THE DESIGNATED INTERNAL REVIEWER HAS SUFFICIENT EXPERTISE  IN  THE
 OPERATION OF SIMILAR SYSTEMS AND A SUFFICIENT UNDERSTANDING OF THE AUTO-
 S. 7623                             7
 
 MATED  EMPLOYMENT  DECISION TOOL IN QUESTION TO INTERPRET ITS OUTPUTS AS
 WELL AS RESULTS OF RELEVANT BIAS AUDITS.
   (C) THE DESIGNATED INTERNAL REVIEW HAS EDUCATION, TRAINING, OR EXPERI-
 ENCE SUFFICIENT TO ALLOW THE REVIEWER TO MAKE A WELL-INFORMED DECISION.
   (III)  WHEN  AN EMPLOYER CANNOT CORROBORATE THE OUTPUT PRODUCED BY THE
 AUTOMATED EMPLOYMENT DECISION TOOL, THE EMPLOYER SHALL NOT RELY  ON  THE
 SYSTEM  TO  MAKE  THE  HIRING,  PROMOTION, TERMINATION, DISCIPLINARY, OR
 COMPENSATION DECISION.
   (IV) WHEN AN EMPLOYER CAN CORROBORATE THE AUTOMATED  EMPLOYMENT  DECI-
 SION TOOL OUTPUT AND MAKES THE HIRING, PROMOTION, TERMINATION, DISCIPLI-
 NARY, OR COMPENSATION DECISION BASED ON THAT OUTPUT, A NOTICE CONTAINING
 THE FOLLOWING INFORMATION SHALL BE GIVEN TO AFFECTED EMPLOYEES:
   (A)  THE SPECIFIC DECISION FOR WHICH THE AUTOMATED EMPLOYMENT DECISION
 TOOL WAS USED;
   (B) ANY INFORMATION OR JUDGMENTS USED IN  ADDITION  TO  THE  AUTOMATED
 EMPLOYMENT DECISION TOOL OUTPUT IN MAKING THE DECISION;
   (C)  THE SPECIFIC EMPLOYEE DATA THAT THE AUTOMATED EMPLOYMENT DECISION
 TOOL USED;
   (D) THE INDIVIDUAL,  VENDOR,  OR  ENTITY  WHO  CREATED  THE  AUTOMATED
 EMPLOYMENT DECISION TOOL;
   (E) THE INDIVIDUAL OR ENTITY THAT EXECUTED AND INTERPRETED THE RESULTS
 OF THE AUTOMATED EMPLOYMENT DECISION TOOL; AND
   (F) A COPY OF ANY BIAS AUDITS REGARDING THE AUTOMATED EMPLOYMENT DECI-
 SION TOOL IN QUESTION.
   (V)  WHEN  AN  EMPLOYER  USES  CORROBORATED  OUTPUT  FROM AN AUTOMATED
 EMPLOYMENT DECISION TOOL  TO  MAKE  A  HIRING,  PROMOTION,  TERMINATION,
 DISCIPLINARY,  OR  COMPENSATION  DECISION,  NOTICE SHALL BE GIVEN TO THE
 AFFECTED WORKER PRIOR TO THE IMPLEMENTATION OF THAT DECISION.
   (C) AN EMPLOYER MAY NOT, WHERE EMPLOYEES  HAVE  UNION  REPRESENTATION,
 REFUSE TO BARGAIN OVER THE USE OF AUTOMATED EMPLOYMENT DECISION TOOLS.
   7.  (A)  ANY  PERSON WHO VIOLATES ANY PROVISION OF THIS SECTION OR ANY
 RULE PROMULGATED PURSUANT TO THIS SECTION IS LIABLE FOR A CIVIL  PENALTY
 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 SUBDIVISIONS TWO, THREE, FOUR, AND FIVE
 OF THIS SECTION.
   (C) FAILURE TO PROVIDE ANY NOTICE TO A CANDIDATE  OR  AN  EMPLOYEE  IN
 VIOLATION  OF  SUBDIVISION FIVE OF THIS SECTION SHALL CONSTITUTE A SEPA-
 RATE 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.
   8. THE ATTORNEY GENERAL  OR  SUCH  OTHER  PERSONS  DESIGNATED  BY  THE
 DEPARTMENT  MAY  INITIATE  IN  ANY  COURT  OF COMPETENT JURISDICTION ANY
 ACTION OR PROCEEDING 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 APPROPRI-
 ATE.
   9. THE PROVISIONS OF THIS SECTION SHALL NOT BE CONSTRUED AS  TO  LIMIT
 ANY  RIGHT  OF ANY EMPLOYEE OR CANDIDATE FOR EMPLOYMENT TO BRING A CIVIL
 S. 7623                             8
 
 ACTION IN ANY COURT OF COMPETENT JURISDICTION, OR TO LIMIT THE AUTHORITY
 OF THE DIVISION OF HUMAN RIGHTS TO ENFORCE  THE  PROVISIONS  OF  ARTICLE
 FIFTEEN OF THE EXECUTIVE LAW.
   §  2. Section 52-c of the civil rights law, as added by chapter 583 of
 the laws of 2021, is renumbered section 52-e.
   § 3. This act shall take effect on the one hundred eightieth day after
 it shall have become a law.

                             
                     S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                  7623--B
 
                        2023-2024 Regular Sessions
 
                             I N  S E N A T E
 
                              August 4, 2023
                                ___________
 
 Introduced  by Sen. HOYLMAN-SIGAL -- read twice and ordered printed, and
   when printed to be committed to the Committee on  Rules  --  committee
   discharged, bill amended, ordered reprinted as amended and recommitted
   to  said committee -- recommitted to the Committee on Labor in accord-
   ance with Senate Rule 6, sec. 8 -- committee discharged, bill amended,
   ordered reprinted as amended and recommitted to said committee
 
 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 article 36 to read
 as follows:
                                ARTICLE 36
                  BOSSWARE AND OPPRESSIVE TECHNOLOGY ACT
 SECTION 1010. DEFINITIONS.
         1011. ELECTRONIC MONITORING TOOLS.
         1012. AUTOMATED EMPLOYMENT DECISION TOOLS.
         1013. DATA ACCESS AND ACCURACY.
         1014. RETALIATION PROHIBITED.
         1015. CIVIL LIABILITY.
         1016. VIOLATIONS.
         1017. POWERS OF THE COMMISSIONER.
   § 1010. DEFINITIONS.  FOR  THE PURPOSES OF THIS SECTION, THE FOLLOWING
 TERMS HAVE THE FOLLOWING MEANINGS:
   1. "AGGREGATED EMPLOYEE DATA" MEANS EMPLOYEE DATA THAT AN EMPLOYER HAS
 COMBINED, OR COLLECTED TOGETHER, IN A SUMMARY OR OTHER FORM SO THAT  THE
 EMPLOYEE DATA CANNOT BE IDENTIFIED WITH ANY SPECIFIC EMPLOYEE.
   2.  "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

  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
                                                            LBD11940-11-4
              

 S. 7623--B                          2
 
 METHODS THAT ISSUES AN OUTPUT, INCLUDING A SCORE, CLASSIFICATION,  RANK-
 ING, OR RECOMMENDATION, THAT IS USED TO ASSIST OR REPLACE HUMAN DECISION
 MAKING  ON  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.
   3. "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.
   4.  "CONTINUOUS  INCREMENTAL  TIME-TRACKING  TOOL"  MEANS  ANY SYSTEM,
 APPLICATION OR INSTRUMENT THAT  CONTINUOUSLY  MEASURES,  RECORDS  AND/OR
 TALLIES  INCREMENTS  OF TIME WITHIN A DAY DURING WHICH AN EMPLOYEE IS OR
 IS NOT DOING A PARTICULAR ACTIVITY OR SET OF ACTIVITIES.
   5. "ELECTRONIC MONITORING TOOL"  MEANS  ANY  SYSTEM,  APPLICATION,  OR
 INSTRUMENT  THAT  FACILITATES  THE  COLLECTION OF DATA CONCERNING WORKER
 ACTIVITIES OR COMMUNICATIONS BY ANY MEANS OTHER THAN DIRECT  OBSERVATION
 BY A NATURAL PERSON, INCLUDING BUT NOT LIMITED TO THE USE OF A COMPUTER,
 TELEPHONE,  WIRE,  RADIO,  CAMERA,  ELECTROMAGNETIC, PHOTOELECTRONIC, OR
 PHOTO-OPTICAL SYSTEM.
   6.  "EGREGIOUS  MISCONDUCT"  MEANS  DELIBERATE  OR  GROSSLY  NEGLIGENT
 CONDUCT  THAT  ENDANGERS  THE  SAFETY  OR  WELL-BEING OF THE INDIVIDUAL,
 CO-WORKERS, CUSTOMERS, OR OTHER PERSONS, OR THAT CAUSES  SERIOUS  DAMAGE
 TO  THE EMPLOYER'S OR CUSTOMERS' PROPERTY OR BUSINESS INTERESTS, INCLUD-
 ING DISCRIMINATION AGAINST OR HARASSMENT OF  CO-WORKERS,  CUSTOMERS,  OR
 OTHER PERSONS OR VIOLATIONS OF THE LAW.
   7.  "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,  INCLUDING THE STATE, COUNTY, TOWN, CITY, SCHOOL
 DISTRICT, PUBLIC AUTHORITY OR  OTHER  GOVERNMENTAL  SUBDIVISION  OF  ANY
 KIND.  "EMPLOYER" INCLUDES ANY OF THE EMPLOYER'S AGENTS, CONTRACTORS, OR
 SUBCONTRACTORS.
   8.  "EMPLOYEE"  MEANS ANY NATURAL PERSON OR THEIR AUTHORIZED REPRESEN-
 TATIVE ACTING FOR, EMPLOYED BY, OR A PERSON CLASSIFIED AS AN INDEPENDENT
 CONTRACTOR PROVIDING SERVICE TO, OR THROUGH, AN  EMPLOYER  OPERATING  IN
 THE STATE.  AN EMPLOYEE SHALL BE DEEMED TO BE OPERATING IN THE STATE FOR
 PURPOSES  OF  DEEMING  AN  EMPLOYEE TO BE COVERED BY THIS ARTICLE IF THE
 EMPLOYEE WORKS AT LEAST PART TIME AT A LOCATION  IN  THE  STATE,  OR  IF
 FULLY  REMOTE, THE EMPLOYEE IS ASSOCIATED WITH AN OFFICE IN THE STATE OR
 SUPERVISED BY A PERSON WHO WORKS AT LEAST PART TIME AT A LOCATION IN THE
 STATE. EMPLOYEE CAN MEAN A FORMER EMPLOYEE.
   9. "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:
   (A) PERSONAL IDENTITY INFORMATION, INCLUDING  THE  INDIVIDUAL'S  NAME,
 CONTACT  INFORMATION, GOVERNMENT-ISSUED IDENTIFICATION NUMBER, FINANCIAL
 INFORMATION, CRIMINAL BACKGROUND, OR EMPLOYMENT HISTORY;
   (B) BIOMETRIC INFORMATION, INCLUDING THE  INDIVIDUAL'S  PHYSIOLOGICAL,
 BIOLOGICAL,  OR  BEHAVIORAL  CHARACTERISTICS, INCLUDING THE INDIVIDUAL'S
 S. 7623--B                          3
 
 DEOXYRIBONUCLEIC ACID (DNA), THAT CAN BE USED, SINGLY OR IN  COMBINATION
 WITH OTHER DATA, TO ESTABLISH INDIVIDUAL IDENTITY;
   (C)  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
   (D) ANY DATA RELATED TO WORKPLACE ACTIVITIES, INCLUDING THE FOLLOWING:
   (I) HUMAN RESOURCES INFORMATION, INCLUDING THE CONTENTS OF AN INDIVID-
 UAL'S PERSONNEL FILE OR PERFORMANCE EVALUATIONS;
   (II)  WORK PROCESS INFORMATION, SUCH AS DATA RELATING TO AN INDIVIDUAL
 EMPLOYEE'S PERFORMANCE, INCLUDING BUT NOT LIMITED TO QUANTITIES OF TASKS
 PERFORMED, QUANTITIES OF ITEMS OR MATERIALS HANDLED OR  PRODUCED,  RATES
 OR  SPEEDS  OF  TASKS  PERFORMED,  MEASUREMENTS  OR  METRICS OF EMPLOYEE
 PERFORMANCE IN RELATION TO A QUOTA, AND TIME CATEGORIZED  AS  PERFORMING
 TASKS OR NOT PERFORMING TASKS;
   (III)  DATA  THAT  CAPTURES WORKPLACE COMMUNICATIONS AND INTERACTIONS,
 INCLUDING EMAILS, TEXTS, INTERNAL MESSAGE BOARDS,  AND  CUSTOMER  INTER-
 ACTION AND RATINGS;
   (IV)  DEVICE  USAGE  AND  DATA,  INCLUDING CALLS PLACED OR GEOLOCATION
 INFORMATION;
   (V) AUDIO OR VIDEO DATA OR OTHER INFORMATION COLLECTED  FROM  SENSORS,
 INCLUDING  MOVEMENT  TRACKING,  THERMAL  SENSORS, VOICEPRINTS, OR FACIAL
 RECOGNITION, EMOTION, AND GAIT RECOGNITION;
   (VI) INPUTS TO OR OUTPUTS GENERATED BY AN AUTOMATED  EMPLOYMENT  DECI-
 SION TOOL THAT ARE LINKED TO THE INDIVIDUAL;
   (VII)  DATA  COLLECTED  THROUGH  ELECTRONIC  MONITORING  OR CONTINUOUS
 INCREMENTAL TIME-TRACKING TOOLS; AND
   (VIII) DATA COLLECTED OR GENERATED ON WORKERS TO MITIGATE  THE  SPREAD
 OF  INFECTIOUS  DISEASES,  INCLUDING  COVID-19, OR TO COMPLY WITH PUBLIC
 HEALTH MEASURES.
   10. "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 PERSONS  CLASSIFIED  AS
 INDEPENDENT CONTRACTORS OR FOR CANDIDATES FOR EMPLOYMENT, THIS MEANS THE
 EQUIVALENT  OF THESE DECISIONS BASED ON THEIR CONTRACT WITH OR RELATION-
 SHIP TO THE EMPLOYER.
   11. "IMPACT ASSESSMENT" MEANS AN IMPARTIAL EVALUATION BY AN  INDEPEND-
 ENT AUDITOR THAT COMPLIES WITH SECTION ONE THOUSAND TWELVE OF THIS ARTI-
 CLE.
   12.  "INDEPENDENT  AUDITOR"  MEANS A PERSON OR ENTITY THAT CONDUCTS AN
 IMPACT ASSESSMENT OF AN AUTOMATED EMPLOYMENT DECISION TOOL IN  A  MANNER
 THAT EXERCISES OBJECTIVE AND IMPARTIAL JUDGMENT ON ALL ISSUES WITHIN THE
 SCOPE  OF  SUCH EVALUATION OR ASSESSMENT. A PERSON IS NOT AN INDEPENDENT
 AUDITOR OF AN AUTOMATED EMPLOYMENT DECISION TOOL IF THEY CURRENTLY OR AT
 ANY POINT IN THE FIVE YEARS PRECEDING THE IMPACT ASSESSMENT:
   (A) ARE OR WERE INVOLVED IN USING, DEVELOPING, OFFERING, LICENSING, OR
 DEPLOYING THE AUTOMATED EMPLOYMENT DECISION TOOL;
   (B) HAVE OR HAD AN EMPLOYMENT RELATIONSHIP WITH A DEVELOPER OR DEPLOY-
 ER THAT USES, OFFERS, OR  LICENSES  THE  AUTOMATED  EMPLOYMENT  DECISION
 TOOL; OR
 S. 7623--B                          4
 
   (C)  HAVE  OR  HAD  A DIRECT FINANCIAL INTEREST OR A MATERIAL INDIRECT
 FINANCIAL INTEREST IN A DEVELOPER OR  DEPLOYER  THAT  USES,  OFFERS,  OR
 LICENSES THE AUTOMATED EMPLOYMENT DECISION TOOL.
   13.  "MEANINGFUL  HUMAN OVERSIGHT" MEANS A PROCESS THAT INCLUDES, AT A
 MINIMUM:
   (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 IMPACT ASSESSMENT 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
 PARAGRAPH (B) OF THIS SUBDIVISION.
   14. "PERIODIC ASSESSMENT OF WORKER PERFORMANCE" MEANS ASSESSING WORKER
 PERFORMANCE  OVER  THE  COURSE OF UNITS OF TIME EQUAL TO OR GREATER THAN
 ONE CALENDAR DAY.
   15. "PROTECTED CLASS" MEANS A CLASS ENUMERATED IN SECTION TWO  HUNDRED
 NINETY-SIX OF THE EXECUTIVE LAW.
   16.  "VENDOR"  MEANS  ANY  PERSON OR ENTITY 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.  "VENDOR" INCLUDES
 ANY OF THE VENDOR'S AGENTS, CONTRACTORS, OR SUBCONTRACTORS.
   § 1011. ELECTRONIC MONITORING TOOLS. 1. (A) IT SHALL BE  UNLAWFUL  FOR
 AN  EMPLOYER  TO  USE  AN ELECTRONIC MONITORING TOOL TO COLLECT EMPLOYEE
 DATA UNLESS:
   (I) THE ELECTRONIC MONITORING TOOL IS PRIMARILY USED 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, COLLECTS THE LEAST AMOUNT  OF  DATA  AND  IS
 COLLECTED  NO  MORE  FREQUENTLY  THAN  IS  NECESSARY  TO  ACCOMPLISH THE
 PURPOSE, AND THE DATA COLLECTED IS DELETED ONCE  THE  PURPOSE  HAS  BEEN
 ACHIEVED.
   (B)  ANY  EMPLOYER  THAT USES AN ELECTRONIC MONITORING TOOL SHALL GIVE
 PRIOR WRITTEN NOTICE TO ALL CANDIDATES AND EMPLOYEES  SUBJECT  TO  ELEC-
 TRONIC  MONITORING  AND POST SAID NOTICE IN A CONSPICUOUS PLACE WHICH IS
 READILY AVAILABLE FOR VIEWING BY CANDIDATES AND EMPLOYEES,  PURSUANT  TO
 SUBDIVISION  TWO  OF  SECTION  FIFTY-TWO-E OF THE CIVIL RIGHTS LAW. SUCH
 NOTICE SHALL INCLUDE, AT A MINIMUM, THE FOLLOWING:
 S. 7623--B                          5
 
   (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;
   (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 ESTABLISH,  MAINTAIN,  AND  PRESERVE  FOR  THREE
 YEARS  CONTEMPORANEOUS, TRUE, AND ACCURATE RECORDS OF DATA COLLECTED VIA
 AN ELECTRONIC MONITORING TOOL TO  ENSURE  COMPLIANCE  WITH  EMPLOYEE  OR
 COMMISSIONER  REQUESTS FOR DATA. THE EMPLOYER SHALL DESTROY ANY EMPLOYEE
 DATA COLLECTED VIA AN ELECTRONIC MONITORING TOOL NO LATER  THAN  THIRTY-
 SEVEN  MONTHS  AFTER COLLECTION 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:
   (I) BE WRITTEN IN CLEAR AND PLAIN LANGUAGE;
   (II) BE PROVIDED TO EACH EMPLOYEE, IN THE LANGUAGE IDENTIFIED BY  EACH
 EMPLOYEE AS THE PRIMARY LANGUAGE OF SUCH EMPLOYEE, AT THE TIME OF HIRING
 AND AT LEAST ANNUALLY THEREAFTER;
   (III)  BE POSTED IN A CLEAR AND CONSPICUOUS LOCATION IN ENGLISH AND IN
 ANY OTHER LANGUAGE THAT THE EMPLOYER REGULARLY USES TO COMMUNICATE  WITH
 EMPLOYEES;
   (IV) BE MADE AVAILABLE IN FORMATS THAT ARE ACCESSIBLE TO EMPLOYEES WHO
 ARE BLIND OR HAVE OTHER DISABILITIES;
   (V)  PROVIDE  THE  WORKER  WITH ACTUAL NOTICE OF ELECTRONIC MONITORING
 ACTIVITIES. A NOTICE THAT STATES ELECTRONIC MONITORING "MAY" TAKE  PLACE
 OR  THAT  THE  EMPLOYER  "RESERVES  THE  RIGHT"  TO MONITOR SHALL NOT BE
 CONSIDERED ACTUAL NOTICE OF ELECTRONIC MONITORING ACTIVITIES; AND
   (VI) BE OTHERWISE PRESENTED IN A MANNER THAT ENSURES THE NOTICE CLEAR-
 LY AND EFFECTIVELY COMMUNICATES THE REQUIRED INFORMATION TO EMPLOYEES.
   (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.
 S. 7623--B                          6
 
   2. (A) NOTWITHSTANDING THE ALLOWABLE PURPOSES FOR ELECTRONIC  MONITOR-
 ING  DESCRIBED  IN  PARAGRAPH (A) OF SUBDIVISION ONE OF THIS SECTION, AN
 EMPLOYER SHALL NOT:
   (I) USE AN ELECTRONIC MONITORING TOOL IN SUCH A MANNER THAT RESULTS IN
 A  VIOLATION  OF LABOR, EMPLOYMENT, CIVIL RIGHTS, OR HUMAN RIGHTS LAW OR
 ANY OTHER LAW OF THIS STATE;
   (II) USE AN ELECTRONIC MONITORING TOOL OR DATA COLLECTED VIA AN  ELEC-
 TRONIC  MONITORING  TOOL  IN  SUCH  A  MANNER AS TO THREATEN THE HEALTH,
 WELFARE, SAFETY, OR LEGAL RIGHTS OF EMPLOYEES OR THE GENERAL PUBLIC;
   (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 HEALTH, PROTECTED-CLASS STATUS, OR MEMBERSHIP IN ANY
 GROUP PROTECTED FROM EMPLOYMENT DISCRIMINATION UNDER SECTION TWO HUNDRED
 NINETY-SIX OF THE EXECUTIVE LAW OR ANY OTHER APPLICABLE LAW;
   (V) USE AN ELECTRONIC MONITORING TOOL IN ORDER TO IDENTIFY, PUNISH, OR
 OBTAIN INFORMATION ABOUT EMPLOYEES ENGAGING IN ACTIVITY PROTECTED  UNDER
 LABOR OR EMPLOYMENT LAW;
   (VI) CONDUCT AUDIO OR VISUAL MONITORING OF BATHROOMS OR OTHER SIMILAR-
 LY  PRIVATE  AREAS,  INCLUDING LOCKER ROOMS, CHANGING AREAS, BREAKROOMS,
 SMOKING 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;
   (VII)  CONDUCT AUDIO OR VISUAL MONITORING OF A WORKPLACE IN AN EMPLOY-
 EE'S RESIDENCE, AN EMPLOYEE'S PERSONAL VEHICLE,  OR  PROPERTY  OWNED  OR
 LEASED BY AN EMPLOYEE;
   (VIII)  USE  AN  ELECTRONIC  MONITORING  TOOL THAT INCORPORATES FACIAL
 RECOGNITION, GAIT, VOICE ANALYSIS, OR EMOTION RECOGNITION TECHNOLOGY;
   (IX) TAKE ADVERSE ACTION AGAINST AN EMPLOYEE BASED IN WHOLE OR IN PART
 ON THEIR OPPOSITION OR REFUSAL TO SUBMIT TO A PRACTICE THAT THE EMPLOYEE
 BELIEVES IN GOOD FAITH VIOLATES THIS ARTICLE;
   (X) TAKE ADVERSE EMPLOYMENT ACTION AGAINST AN EMPLOYEE ON THE BASIS OF
 DATA COLLECTED VIA CONTINUOUS INCREMENTAL TIME-TRACKING TOOLS EXCEPT  IN
 THE CASE OF EGREGIOUS MISCONDUCT;
   (XI)  TAKE  ADVERSE EMPLOYMENT ACTION AGAINST AN EMPLOYEE BASED ON ANY
 DATA COLLECTED VIA  ELECTRONIC  MONITORING  IF  SUCH  DATA  MEASURES  AN
 EMPLOYEE'S  PERFORMANCE  IN  RELATION TO A PERFORMANCE STANDARD THAT HAS
 NOT BEEN PREVIOUSLY DISCLOSED TO SUCH EMPLOYEE IN VIOLATION OF  SUBPARA-
 GRAPH  (VI)  OF  PARAGRAPH (B) OF SUBDIVISION ONE OF THIS SECTION, OR IF
 SUCH DATA WAS COLLECTED WITHOUT PROPER NOTICE TO EMPLOYEES OR CANDIDATES
 PURSUANT TO SECTION  FIFTY-TWO-E OF THE CIVIL RIGHTS LAW; OR
   (XII)  WHERE  EMPLOYEES  HAVE  UNION  REPRESENTATION  AND  WHERE   NOT
 PREEMPTED  BY  FEDERAL  LAW,  REFUSE TO BARGAIN OVER THE IMPLEMENTATION,
 USE, AND ONGOING EVALUATION 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 ONE 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 AN IMPACT ASSESSMENT OF AN AUTOMATED EMPLOYMENT
 DECISION TOOL PURSUANT TO SECTION ONE THOUSAND TWELVE OF THIS ARTICLE.
   (D) AN EMPLOYER SHALL NOT REQUIRE EMPLOYEES TO:
 S. 7623--B                          7

   (I) PHYSICALLY IMPLANT DEVICES THAT COLLECT OR TRANSMIT DATA,  INCLUD-
 ING DEVICES THAT ARE INSTALLED SUBCUTANEOUSLY OR INCORPORATED INTO ITEMS
 OF CLOTHING OR PERSONAL ACCESSORIES;
   (II) INSTALL APPLICATIONS ON PERSONAL DEVICES THAT COLLECT OR TRANSMIT
 EMPLOYEE DATA OR  TO WEAR OR  EMBED THOSE DEVICES; OR
   (III)  CARRY  OR USE ANY DEVICE WITH LOCATION TRACKING APPLICATIONS OR
 SERVICES ENABLED UNLESS THE LOCATION TRACKING IS:
   (A) CONDUCTED DURING WORK HOURS; AND
   (B) STRICTLY NECESSARY  TO  ACCOMPLISH  ESSENTIAL  JOB  FUNCTIONS  AND
 NARROWLY  LIMITED TO  ONLY  THE ACTIVITIES AND TIMES NECESSARY TO ACCOM-
 PLISH ESSENTIAL JOB FUNCTIONS.
   (E)  AN  EMPLOYER  SHALL NOT RELY PRIMARILY ON EMPLOYEE DATA COLLECTED
 THROUGH ELECTRONIC MONITORING  WHEN  MAKING  HIRING,  PROMOTION,  TERMI-
 NATION,  DISCIPLINARY,  OR  COMPENSATION  DECISIONS.  FOR AN EMPLOYER TO
 SATISFY THE REQUIREMENTS OF THIS PARAGRAPH:
   (I) AN EMPLOYER MUST ESTABLISH  MEANINGFUL  HUMAN  OVERSIGHT  OF  SUCH
 DECISIONS  BASED  IN  WHOLE OR PART ON DATA COLLECTED THROUGH ELECTRONIC
 MONITORING.
   (II) A HUMAN  DECISION-MAKER  MUST  ACTUALLY  REVIEW  ANY  INFORMATION
 COLLECTED THROUGH ELECTRONIC MONITORING, VERIFY THAT SUCH INFORMATION IS
 ACCURATE AND UP TO DATE, REVIEW ANY PENDING EMPLOYEE REQUESTS TO CORRECT
 ERRONEOUS  DATA,  AND  EXERCISE INDEPENDENT JUDGMENT IN MAKING EACH SUCH
 DECISION; AND
   (III) THE HUMAN DECISION-MAKER MUST CONSIDER  INFORMATION  OTHER  THAN
 INFORMATION  COLLECTED  THROUGH  ELECTRONIC  MONITORING WHEN MAKING EACH
 SUCH DECISION, SUCH AS BUT NOT  LIMITED  TO  SUPERVISORY  OR  MANAGERIAL
 EVALUATIONS, PERSONNEL FILES, EMPLOYEE WORK PRODUCTS, OR PEER REVIEWS.
   (F) WHEN AN EMPLOYER MAKES A HIRING, PROMOTION, TERMINATION, DISCIPLI-
 NARY  OR  COMPENSATION  DECISION BASED IN WHOLE OR PART ON DATA GATHERED
 THROUGH THE USE OF ELECTRONIC MONITORING, IT SHALL DISCLOSE TO  AFFECTED
 EMPLOYEES  AT  LEAST  FOURTEEN  DAYS  PRIOR  TO  THE DECISION GOING INTO
 EFFECT:
   (I) THAT THE DECISION WAS BASED IN WHOLE OR PART BASED ON  DATA  GATH-
 ERED THROUGH ELECTRONIC MONITORING;
   (II)  THE  SPECIFIC ELECTRONIC MONITORING TOOL OR TOOLS USED TO GATHER
 SUCH DATA;
   (III) THE SPECIFIC DATA, AND JUDGMENTS BASED UPON SUCH DATA,  USED  IN
 THE DECISION-MAKING PROCESS; AND
   (IV)  ANY  INFORMATION  USED  IN  THE DECISION-MAKING PROCESS GATHERED
 THROUGH SOURCES OTHER THAN ELECTRONIC MONITORING.
   § 1012. AUTOMATED EMPLOYMENT DECISION TOOLS. 1. (A) IT SHALL BE UNLAW-
 FUL FOR AN EMPLOYER TO USE AN AUTOMATED EMPLOYMENT DECISION TOOL FOR  AN
 EMPLOYMENT  DECISION  UNLESS SUCH TOOL HAS BEEN THE SUBJECT OF AN IMPACT
 ASSESSMENT.  IMPACT ASSESSMENTS 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 THE  EFFECTIVE  DATE
 OF  THIS  ARTICLE, WITHIN SIX MONTHS OF THE EFFECTIVE DATE OF THIS ARTI-
 CLE;
   (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
 S. 7623--B                          8
 
 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;
   (VI) CONSIDER, IDENTIFY, AND DESCRIBE ANY 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) CONSIDER AND  DESCRIBE  POTENTIAL  SOURCES  OF  ADVERSE  IMPACT
 AGAINST PROTECTED CLASSES THAT MAY ARISE AFTER THE TOOL IS DEPLOYED;
   (IX)  IDENTIFY AND DESCRIBE ANY OTHER ASSESSMENT OF RISKS OF DISCRIMI-
 NATION OR A DISPARATE IMPACT OF THE TOOL ON MEMBERS OF A PROTECTED CLASS
 THAT ARISE OVER THE COURSE OF THE IMPACT ASSESSMENT,  AND  WHAT  ACTIONS
 MAY BE TAKEN TO REDUCE OR REMEDY THAT RISK;
   (X)  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
   (XI) BE SUBMITTED IN ITS ENTIRETY OR AN ACCESSIBLE SUMMARY FORM TO THE
 DEPARTMENT FOR INCLUSION IN A PUBLIC REGISTRY OF SUCH IMPACT ASSESSMENTS
 WITHIN SIXTY DAYS OF COMPLETION AND DISTRIBUTED TO EMPLOYEES WHO MAY  BE
 SUBJECT TO THE TOOL.
   (B)  AN EMPLOYER SHALL CONDUCT OR COMMISSION SUBSEQUENT IMPACT ASSESS-
 MENTS EACH YEAR THAT THE TOOL IS IN USE TO ASSIST OR REPLACE  EMPLOYMENT
 DECISIONS.  SUBSEQUENT IMPACT ASSESSMENTS SHALL COMPLY WITH THE REQUIRE-
 MENTS  OF  PARAGRAPH  (A)  OF  THIS  SUBDIVISION,  AND  SHALL ASSESS AND
 DESCRIBE ANY CHANGE IN THE VALIDITY 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 AN IMPACT ASSESSMENT. 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  SPECIFICA-
 TIONS  OF  THE  TOOL AS IT WAS USED AT THE TIME OF THAT EMPLOYMENT DECI-
 SION. SUCH DOCUMENTATION SHALL BE STORED IN ACCORDANCE WITH SUCH RECORD-
 KEEPING, DATA RETENTION, AND SECURITY REQUIREMENTS AS  THE  COMMISSIONER
 MAY SPECIFY, AND IN SUCH A MANNER AS TO BE LEGIBLE AND ACCESSIBLE TO THE
 PARTY CONDUCTING AN IMPACT ASSESSMENT.
   (D)  IF  AN  INITIAL  OR  SUBSEQUENT  IMPACT  ASSESSMENT  REQUIRES THE
 COLLECTION OF EMPLOYEE DATA TO  ASSESS  A  TOOL'S  DISPARATE  IMPACT  ON
 EMPLOYEES, SUCH DATA SHALL BE COLLECTED, PROCESSED, STORED, AND RETAINED
 IN  SUCH  A  MANNER  AS  TO  PROTECT THE PRIVACY OF EMPLOYEES, AND SHALL
 COMPLY WITH ANY DATA RETENTION AND SECURITY  REQUIREMENTS  SPECIFIED  BY
 THE  COMMISSIONER. EMPLOYEE DATA PROVIDED TO AUDITORS FOR THE PURPOSE OF
 AN IMPACT ASSESSMENT SHALL NOT BE SHARED WITH THE EMPLOYER, NOR SHALL IT
 S. 7623--B                          9
 
 BE SHARED WITH ANY PERSON, BUSINESS ENTITY, OR OTHER ORGANIZATION UNLESS
 STRICTLY NECESSARY FOR THE COMPLETION OF THE IMPACT ASSESSMENT.
   (E)  IF  AN  INITIAL  OR SUBSEQUENT IMPACT ASSESSMENT 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 LIMITS ACCESSIBILITY FOR PERSONS WITH DISABILITIES,
 AN EMPLOYER SHALL REFRAIN FROM USING THE TOOL UNTIL IT:
   (I) TAKES REASONABLE AND APPROPRIATE STEPS TO  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  IMPACT  ASSESSMENT  FINDING  OF  A
 DISPARATE  IMPACT  OR  LIMIT  ON ACCESSIBILITY IS ERRONEOUS, OR THAT THE
 STEPS TAKEN IN ACCORDANCE WITH SUBPARAGRAPH (I) OF THIS PARAGRAPH SUFFI-
 CIENTLY ADDRESS THOSE FINDINGS SUCH THAT THE TOOL MAY BE  LAWFULLY  USED
 IN  ACCORDANCE WITH THIS ARTICLE, DESCRIBES 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.
   (F)  IT  SHALL  BE  UNLAWFUL  FOR  AN  INDEPENDENT AUDITOR, VENDOR, OR
 EMPLOYER TO MANIPULATE, CONCEAL,  OR  MISREPRESENT  THE  RESULTS  OF  AN
 IMPACT ASSESSMENT.
   (G)  NOTHING  IN  THIS  ARTICLE  SHALL  BE CONSTRUED AS PROHIBITING AN
 EMPLOYER FROM IMPLEMENTING A LAWFUL AFFIRMATIVE ACTION PLAN OR  ENGAGING
 IN  OTHERWISE  LAWFUL  EFFORTS TO REDUCE OR ELIMINATE BIAS IN EMPLOYMENT
 DECISIONS.
   2. (A) ANY EMPLOYER THAT USES AN AUTOMATED EMPLOYMENT DECISION TOOL TO
 ASSESS OR EVALUATE AN EMPLOYEE OR CANDIDATE SHALL NOTIFY  EMPLOYEES  AND
 CANDIDATES  SUBJECT  TO  THE  TOOL NO LESS THAN TEN BUSINESS DAYS BEFORE
 SUCH USE:
   (I) THAT AN  AUTOMATED  EMPLOYMENT  DECISION  TOOL  WILL  BE  USED  IN
 CONNECTION  WITH THE ASSESSMENT OR EVALUATION OF SUCH EMPLOYEE OR CANDI-
 DATE;
   (II) 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;
   (III)  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;
   (IV) THE RESULTS OF THE MOST RECENT IMPACT ASSESSMENT OF THE AUTOMATED
 EMPLOYMENT 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;
   (V) 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 DETAILS ABOUT THAT
 ALTERNATIVE PROCESS OR ACCOMMODATION PROCESS; AND
   (VI) INFORMATION ABOUT HOW THE EMPLOYEE OR CANDIDATE MAY:
   (A) REQUEST REEVALUATION OF THE EMPLOYMENT DECISION MADE BY THE  AUTO-
 MATED  EMPLOYMENT  DECISION TOOL IN ACCORDANCE WITH SECTION ONE THOUSAND
 THIRTEEN OF THIS ARTICLE; AND
 S. 7623--B                         10

   (B) NOTIFICATION OF THE  EMPLOYEE  OR  CANDIDATE'S  RIGHT  TO  FILE  A
 COMPLAINT  IN  A  CIVIL  COURT  IN  ACCORDANCE WITH SECTION ONE THOUSAND
 FIFTEEN OF THIS ARTICLE.
   (B) THE NOTICE REQUIRED BY THIS SUBDIVISION SHALL BE:
   (I) WRITTEN IN CLEAR AND PLAIN LANGUAGE;
   (II)  INCLUDED  IN EACH JOB POSTING OR ADVERTISEMENT FOR EACH POSITION
 FOR WHICH THE AUTOMATED EMPLOYMENT DECISION TOOL WILL BE USED;
   (III) POSTED ON THE  EMPLOYER'S  WEBSITE  IN  ANY  LANGUAGE  THAT  THE
 EMPLOYER REGULARLY USES TO COMMUNICATE WITH EMPLOYEES;
   (IV) PROVIDED DIRECTLY TO EACH CANDIDATE WHO APPLIES FOR A POSITION IN
 THE LANGUAGE WITH WHICH THAT CANDIDATE COMMUNICATES WITH THE EMPLOYER;
   (V) MADE AVAILABLE IN FORMATS THAT ARE ACCESSIBLE TO EMPLOYEES WHO ARE
 BLIND OR HAVE OTHER DISABILITIES; AND
   (VI)  OTHERWISE  PRESENTED IN A MANNER THAT ENSURES THE NOTICE CLEARLY
 AND EFFECTIVELY COMMUNICATES THE REQUIRED INFORMATION TO EMPLOYEES.
   3. (A) NOTWITHSTANDING THE  PROVISIONS  OF  SUBDIVISION  ONE  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, EMPLOYMENT,
 CIVIL RIGHTS OR HUMAN RIGHTS LAW OR ANY OTHER LAW OF THIS STATE;
   (II) IN A MANNER THAT HARMS OR IS LIKELY TO HARM THE HEALTH OR  SAFETY
 OF  EMPLOYEES, INCLUDING BY SETTING PRODUCTIVITY QUOTAS IN A MANNER THAT
 IS LIKELY TO CAUSE PHYSICAL OR MENTAL ILLNESS OR INJURY;
   (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;
   (V)  TO  SUBTRACT FROM AN EMPLOYEE'S WAGES TIME SPENT EXERCISING THEIR
 LEGAL RIGHTS;
   (VI) IN A MANNER NOT CONSISTENT WITH THE SCOPE OF THE  IMPACT  ASSESS-
 MENT REQUIRED BY SUBDIVISION ONE OF THIS SECTION; OR
   (VII)  THAT  INVOLVES FACIAL RECOGNITION, GAIT, OR EMOTION RECOGNITION
 TECHNOLOGIES.
   (B) AN EMPLOYER SHALL NOT RELY PRIMARILY ON OUTPUT FROM  AN  AUTOMATED
 EMPLOYMENT  DECISION  TOOL  WHEN  MAKING HIRING, PROMOTION, TERMINATION,
 DISCIPLINARY, OR COMPENSATION DECISIONS.  FOR AN EMPLOYER TO SATISFY THE
 REQUIREMENTS OF THIS PARAGRAPH:
   (I) AN EMPLOYER MUST ESTABLISH  MEANINGFUL  HUMAN  OVERSIGHT  OF  SUCH
 DECISIONS  BASED  IN WHOLE OR IN PART ON THE OUTPUT OF AUTOMATED EMPLOY-
 MENT DECISION TOOLS.
   (II) A HUMAN DECISION-MAKER MUST ACTUALLY  REVIEW  ANY  OUTPUT  OF  AN
 AUTOMATED  EMPLOYMENT DECISION TOOL AND EXERCISE INDEPENDENT JUDGMENT IN
 MAKING EACH SUCH DECISION;
   (III) THE HUMAN DECISION-MAKER MUST CONSIDER  INFORMATION  OTHER  THAN
 AUTOMATED  EMPLOYMENT  DECISION TOOL OUTPUTS WHEN MAKING EACH SUCH DECI-
 SION, SUCH AS BUT NOT LIMITED TO SUPERVISORY OR MANAGERIAL  EVALUATIONS,
 PERSONNEL FILES, EMPLOYEE WORK PRODUCTS, OR PEER REVIEWS; AND
   (IV)  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 AND
 WHERE NOT PREEMPTED BY FEDERAL LAW, REFUSE TO BARGAIN OVER  THE  USE  OF
 AUTOMATED EMPLOYMENT DECISION TOOLS.
 S. 7623--B                         11

   (D)  AN  EMPLOYER SHALL NOT REQUIRE EMPLOYEES OR CANDIDATES 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 AS A RESULT OF THEIR REQUEST FOR ACCOMMODATION.
   §  1013. DATA ACCESS AND ACCURACY. 1.(A) AN EMPLOYER SHALL ENSURE THAT
 ANY DATA COLLECTED THROUGH ELECTRONIC MONITORING THAT MAY  BE  USED  FOR
 THE  PURPOSES OF AN EMPLOYMENT DECISION IS ACCURATE AND, WHERE RELEVANT,
 KEPT UP TO DATE.
   (B) A CURRENT OR FORMER EMPLOYEE WHOSE DATA  WAS  COLLECTED  BY  THEIR
 EMPLOYER  THROUGH  ELECTRONIC MONITORING HAS THE RIGHT TO REQUEST A COPY
 OF THE EMPLOYEE'S OWN DATA, AND A COPY OF THE AGGREGATED  EMPLOYEE  DATA
 FOR  SIMILAR  EMPLOYEES  AT  THE SAME ESTABLISHMENT FOR THE   SAME  TIME
 PERIOD, IF THAT DATA MAY BE OR WAS USED FOR THE PURPOSES OF  AN  EMPLOY-
 MENT  DECISION.  A  FORMER  EMPLOYEE  IS LIMITED TO ONE REQUEST PER YEAR
 PURSUANT TO THIS SUBDIVISION.
   (C) AN EMPLOYER THAT RECEIVES A WRITTEN OR ORAL REQUEST  FOR  INFORMA-
 TION   PURSUANT   TO  THIS  SECTION  SHALL  COMPLY  WITH  THE REQUEST AS
 SOON AS PRACTICABLE, BUT NO LATER THAN SEVEN CALENDAR DAYS FROM THE DATE
 OF THE REQUEST. AN EMPLOYER SHALL NOT TAKE  ADVERSE  ACTION  AGAINST  AN
 EMPLOYEE  BASED  ON  THEIR  REQUEST FOR THEIR OWN OR AGGREGATED EMPLOYEE
 DATA, NOR SHALL AN EMPLOYER PROVIDE THOSE  RECORDS  AT  A  COST  TO  THE
 CURRENT OR FORMER EMPLOYEE. AN EMPLOYER SHALL PROVIDE INFORMATION PURSU-
 ANT TO THIS SECTION IN ENGLISH OR, IF APPLICABLE IN THE LANGUAGE IDENTI-
 FIED BY THE EMPLOYEE AS THE PRIMARY LANGUAGE OF SUCH EMPLOYEE.
   (D)  AN  EMPLOYER THAT DOES NOT MONITOR THIS DATA HAS NO OBLIGATION TO
 PROVIDE IT.
   2. (A) AN EMPLOYER THAT USES ELECTRONIC MONITORING TO COLLECT EMPLOYEE
 DATA TO ASSIST IN AN EMPLOYMENT DECISION MUST PROVIDE EMPLOYEES WITH THE
 OPPORTUNITY TO REVIEW AND REQUEST CORRECTION OF SUCH DATA  BOTH  AT  THE
 TIME OF ITS COLLECTION AND AFTER.
   (B)  AN  EMPLOYER THAT RECEIVES AN EMPLOYEE REQUEST TO CORRECT INACCU-
 RATE DATA COLLECTED THROUGH ELECTRONIC MONITORING SHALL INVESTIGATE  AND
 DETERMINE WHETHER SUCH DATA IS INACCURATE.
   (C)  IF  AN EMPLOYER, UPON INVESTIGATION, DETERMINES THAT SUCH DATA IS
 INACCURATE, THE EMPLOYER SHALL:
   (I) PROMPTLY CORRECT THE INACCURATE DATA AND INFORM  THE  EMPLOYEE  OF
 THE EMPLOYER'S DECISION AND ACTION;
   (II)  REVIEW AND ADJUST, AS APPROPRIATE, ANY EMPLOYMENT DECISIONS THAT
 WERE BASED ON THE INACCURATE DATA AND INFORM THE EMPLOYEE OF THE ADJUST-
 MENT; AND
   (III) INFORM ANY THIRD PARTIES WITH  WHICH  THE  EMPLOYER  SHARED  THE
 INACCURATE  DATA,  OR  FROM  WHICH  THE EMPLOYER RECEIVED THE INACCURATE
 DATA, AND DIRECT THEM TO CORRECT IT, AND PROVIDE  THE  EMPLOYEE  WITH  A
 COPY OF SUCH ACTION.
   (D)  IF  AN  EMPLOYER, UPON INVESTIGATION, DETERMINES THAT THE DATA IS
 ACCURATE, THE EMPLOYER SHALL INFORM THE EMPLOYEE OF THE DECISION NOT  TO
 AMEND  THE DATA, THE STEPS TAKEN TO VERIFY THE ACCURACY OF THE DATA, AND
 ANY EVIDENCE SUPPORTING THE DECISION NOT TO AMEND THE DATA.
   3. (A) AN EMPLOYER THAT USES DATA COLLECTED VIA AN ELECTRONIC MONITOR-
 ING TOOL OR OUTPUTS FROM AN AUTOMATED EMPLOYMENT DECISION TOOL  TO  MAKE
 AN  EMPLOYMENT  DECISION SHALL PROVIDE EMPLOYEES AFFECTED BY SUCH ACTION
 WRITTEN NOTICE OF THE DECISION AT LEAST FOURTEEN  CALENDAR  DAYS  BEFORE
 SUCH  ACTION SHALL TAKE EFFECT. SUCH NOTICE OF ADVERSE EMPLOYMENT ACTION
 SHALL CONTAIN:
   (I) ANY PERFORMANCE STANDARDS USED TO MAKE THE EMPLOYMENT DECISION;
 S. 7623--B                         12
 
   (II) ANY OF THE EMPLOYEE'S DATA COLLECTED THROUGH ELECTRONIC  MONITOR-
 ING THAT WAS USED TO MAKE THE EMPLOYMENT DECISION;
   (III) ANY AGGREGATED EMPLOYEE DATA OF EMPLOYEES PERFORMING THE SAME OR
 SIMILAR  FUNCTIONS  AT  THE SAME ESTABLISHMENTS FOR NINETY DAYS PRIOR TO
 THE EMPLOYMENT DECISION;
   (IV) ANY OUTPUTS FROM AN AUTOMATED EMPLOYMENT DECISION TOOL  THAT  WAS
 USED TO MAKE THE EMPLOYMENT DECISION;
   (V)  A  COPY  OF  THE  MOST  RECENT IMPACT ASSESSMENT OF ANY AUTOMATED
 EMPLOYMENT DECISION TOOL THAT WAS USED TO MAKE THE EMPLOYMENT  DECISION;
 AND
   (VI)  WHAT  OTHER  INFORMATION,  STANDARDS,  OR  DATA, OTHER THAN DATA
 COLLECTED VIA ELECTRONIC MONITORING OR  OUTPUTS  PRODUCED  BY  AUTOMATED
 EMPLOYMENT  DECISION TOOLS, WAS USED BY THE EMPLOYER TO MAKE THE EMPLOY-
 MENT DECISION.
   (B) AN EMPLOYEE SUBJECT  TO  AN  EMPLOYMENT  DECISION  BASED  ON  DATA
 COLLECTED VIA AN ELECTRONIC MONITORING TOOL OR OUTPUTS FROM AN AUTOMATED
 EMPLOYMENT  DECISION TOOL WHO BELIEVES THE EMPLOYMENT DECISION TO BE THE
 RESULT OF INACCURATE DATA OR AN INACCURATE OR  ERRONEOUS  OUTPUT  BY  AN
 AUTOMATED  EMPLOYMENT  DECISION  TOOL  MAY REQUEST A REEVALUATION OF THE
 DECISION BY THE EMPLOYER. SUCH REQUEST SHALL BE IN WRITING, INCLUDING BY
 TEXT MESSAGE OR ELECTRONIC MAIL, AND SHALL INCLUDE AT A MINIMUM:
   (I) THE EMPLOYEE'S NAME;
   (II) THE DATA OR OUTPUT THE EMPLOYEE ALLEGES IS INACCURATE OR  ERRONE-
 OUS; AND
   (III)  ANY EVIDENCE THE EMPLOYEE HAS THAT SUCH DATA OR OUTPUT IS INAC-
 CURATE OR ERRONEOUS.
   (C) AN EMPLOYER THAT RECEIVES A REQUEST FOR REEVALUATION OF AN EMPLOY-
 MENT DECISION PURSUANT   TO   THIS   SECTION   SHALL    INVESTIGATE  THE
 EMPLOYEE'S  CLAIM  OF INACCURATE OR ERRONEOUS INFORMATION AND RESPOND TO
 THE EMPLOYEE AS SOON AS PRACTICABLE, BUT NO LATER  THAN  SEVEN  CALENDAR
 DAYS  FROM  THE DATE OF THE REQUEST. IF AN EMPLOYER, UPON INVESTIGATION,
 CONCLUDES THAT NO INACCURATE DATA OR ERRONEOUS OUTPUT WAS USED  TO  MAKE
 THE  EMPLOYMENT DECISION, IT SHALL PROVIDE THE EMPLOYEE WITH EVIDENCE OF
 SUCH  ACCURACY  AND  VALIDITY.  IF  AN  EMPLOYER,  UPON   INVESTIGATION,
 CONCLUDES  THAT INACCURATE DATA OR AN ERRONEOUS OUTPUT DID CONTRIBUTE TO
 THE EMPLOYMENT DECISION, THE EMPLOYER SHALL INFORM THE EMPLOYEE IN WRIT-
 ING OF SUCH ERROR OR  INACCURACY  AND  TAKE  ACTION  TO  REEVALUATE  THE
 EMPLOYEE  WITH CORRECTED DATA OR WITHOUT THE USE OF AN AUTOMATED EMPLOY-
 MENT DECISION TOOL.
   § 1014.  RETALIATION PROHIBITED. 1. IT SHALL BE UNLAWFUL FOR A  PERSON
 TO  TAKE  ANY  RETALIATORY  ACTION,  AS DEFINED IN SECTION SEVEN HUNDRED
 FORTY OF THE THIS CHAPTER, AGAINST ANY EMPLOYEE OR CANDIDATE BECAUSE:
   (A) SUCH EMPLOYEE OR CANDIDATE OPPOSES OR DISCLOSES, OR  THREATENS  TO
 DISCLOSE  TO  A  SUPERVISOR, HIRING MANAGER, OR PUBLIC BODY AN ACTIVITY,
 POLICY OR PRACTICE OF THE EMPLOYER OR VENDOR THAT THE EMPLOYEE OR CANDI-
 DATE REASONABLY BELIEVES IS IN VIOLATION OF THIS ARTICLE, OR ANY RULE OR
 REGULATION ISSUED PURSUANT TO THIS ARTICLE;
   (B) SUCH EMPLOYEE OR CANDIDATE PROVIDES INFORMATION TO,  OR  TESTIFIES
 BEFORE,  ANY PUBLIC BODY CONDUCTING AN INVESTIGATION, HEARING OR INQUIRY
 INTO ANY SUCH ACTIVITY, POLICY OR PRACTICE BY SUCH EMPLOYER  OR  VENDOR,
 OR OTHERWISE PARTICIPATES IN SUCH INVESTIGATION, HEARING, OR INQUIRY;
   (C)  SUCH  EMPLOYEE OR CANDIDATE OBJECTS TO, OR REFUSES TO PARTICIPATE
 IN ANY SUCH ACTIVITY, POLICY OR PRACTICE;
   (D) SUCH EMPLOYEE OR CANDIDATE EXERCISES THEIR RIGHTS PROTECTED  UNDER
 THIS SECTION OR INFORMS OTHERS OF SUCH RIGHTS; OR
 S. 7623--B                         13
 
   (E) SUCH PERSON BELIEVES THAT THE EMPLOYEE OR CANDIDATE ENGAGED IN ANY
 OF  THE  ACTIVITIES DESCRIBED IN PARAGRAPHS (A), (B), (C) OR (D) OF THIS
 SUBDIVISION.
   2.  A  CANDIDATE  OR  EMPLOYEE NEED NOT MAKE EXPLICIT REFERENCE TO ANY
 SECTION OR PROVISION OF THIS ARTICLE OR OF ANY PROVISION OF THIS CHAPTER
 OR HUMAN RIGHTS LAW TO TRIGGER THE PROTECTIONS OF THIS SECTION.
   3. AN EMPLOYER OR OTHER PERSON VIOLATES THIS SECTION WHERE THE EMPLOY-
 EE'S PROTECTED ACTIVITY IS FOUND TO BE A  CONTRIBUTING  FACTOR  FOR  THE
 ADVERSE  ACTION.  WHERE THE COMMISSIONER OR A COURT FINDS AN EMPLOYER OR
 OTHER PERSON HAS VIOLATED THIS SECTION, IT MAY ORDER THE  RELIEF  SPECI-
 FIED IN SECTION TWO HUNDRED FIFTEEN OF THE THIS CHAPTER.
   §  1015.  CIVIL  LIABILITY.  1.  IF  AN EMPLOYER FAILS TO RESPOND TO A
 CURRENT OR FORMER EMPLOYEE OR CANDIDATE'S REQUEST FOR REEVALUATION OF AN
 EMPLOYMENT DECISION PURSUANT TO SECTION ONE THOUSAND  THIRTEEN  OF  THIS
 ARTICLE,  OR  IF  A CURRENT OR FORMER 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 ARTICLE, THE EMPLOYEE OR CANDIDATE MAY INITIATE AN ACTION  IN  A
 COURT  OF COMPETENT JURISDICTION TO ENFORCE THE PROVISIONS OF THIS ARTI-
 CLE. AN EMPLOYER THAT VIOLATES THIS ARTICLE SHALL BE LIABLE  FOR  LIQUI-
 DATED  DAMAGES  IN THE AMOUNT OF FIVE HUNDRED DOLLARS FOR EACH VIOLATION
 OR, WHERE AN EMPLOYEE OR CANDIDATE HAS  SUFFERED  ACTUAL  DAMAGES  AS  A
 RESULT  OF SUCH VIOLATION SUCH AS REDUCED PAY, WORSE WORKING CONDITIONS,
 DENIAL OF ADVANCEMENT OR ACCESS TO BETTER  PAY  OR  WORKING  CONDITIONS,
 DISCIPLINE,  OR  TERMINATION,  THEN  THE  EMPLOYER SHALL BE LIABLE TO AN
 AFFECTED EMPLOYEE OR CANDIDATE FOR THE GREATER OF LIQUIDATED DAMAGES  OR
 TWO  TIMES  THE  EMPLOYEE  OR  CANDIDATE'S  ACTUAL  DAMAGES, WHICH SHALL
 INCLUDE BACK PAY, FRONT PAY, AND  LOST  BENEFITS,  AND  MAY  BE  AWARDED
 INJUNCTIVE,  DECLARATORY,  AND  THE  EMPLOYEE MAY BE AWARDED DAMAGES FOR
 EMOTIONAL DISTRESS AND ANY OTHER REASONABLE OR  APPROPRIATE  RELIEF.  AN
 EMPLOYER  SHALL ALSO BE LIABLE FOR REASONABLE ATTORNEYS' FEES AND COSTS,
 EXCEPT SUCH LIQUIDATED DAMAGES MAY BE UP TO THE GREATER OF ONE  THOUSAND
 DOLLARS  FOR  EACH VIOLATION OR THREE TIMES ACTUAL DAMAGES IF FOUND THAT
 THE ACTIONS WERE WILLFUL, OR IN THE CASE OF VIOLATIONS  OF  SECTION  ONE
 THOUSAND  FOURTEEN  OF  THIS  ARTICLE,  SUCH  RELIEF  AS IS SPECIFIED IN
 SECTION TWO HUNDRED FIFTEEN OF THIS CHAPTER.
   2. IN ANY CIVIL ACTION CLAIMING THAT AN  EMPLOYER  HAS  VIOLATED  THIS
 ARTICLE  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 FIFTEEN EMPLOYEES, THE VENDOR, NOT
 THE SMALL EMPLOYER, SHALL BE LIABLE FOR ANY UNLAWFUL ACTS.
   § 1016. VIOLATIONS. 1. (A) EACH DAY ON WHICH AN ELECTRONIC  MONITORING
 TOOL  OR AUTOMATED EMPLOYMENT DECISION TOOL IS USED IN VIOLATION OF THIS
 ARTICLE SHALL GIVE RISE TO A SEPARATE VIOLATION OF THIS ARTICLE.
   (B) FAILURE TO PROVIDE ANY NOTICE TO A CANDIDATE  OR  AN  EMPLOYEE  IN
 VIOLATION  OF SECTION ONE THOUSAND ELEVEN OR ONE THOUSAND TWELVE OF THIS
 ARTICLE SHALL CONSTITUTE A SEPARATE VIOLATION.
   (C) ANY PERSON WHO VIOLATES ANY PROVISION OF THIS ARTICLE OR ANY  RULE
 PROMULGATED  PURSUANT  TO THIS ARTICLE MAY BE LIABLE FOR A CIVIL PENALTY
 IN THE AMOUNTS PROVIDED  UNDER  PARAGRAPH  (B)  OF  SUBDIVISION  ONE  OF
 SECTION  TWO  HUNDRED  FIFTEEN  OF  THIS  CHAPTER  IN  ORDER  TO  PUNISH
 VIOLATIONS AND DETER FUTURE VIOLATIONS.
 S. 7623--B                         14
 
   2. THE ATTORNEY GENERAL MAY INITIATE IN A COURT OF COMPETENT JURISDIC-
 TION ACTION THAT MAY BE APPROPRIATE OR NECESSARY FOR CORRECTION  OF  ANY
 VIOLATION  OF  THIS  ARTICLE,  INCLUDING  MANDATING  COMPLIANCE WITH THE
 PROVISIONS OF THIS ARTICLE, SECURING  ANY  OF  THE  REMEDIES  AUTHORIZED
 UNDER  THIS  ARTICLE INCLUDING RECOVERING DAMAGES AND LIQUIDATED DAMAGES
 AS SPECIFIED IN SECTION ONE THOUSAND FOURTEEN OF THIS ARTICLE AND SECUR-
 ING INJUNCTIVE, DECLARATORY, OR SUCH OTHER RELIEF AS MAY BE APPROPRIATE,
 AND ORDERING PAYMENT OF CIVIL PENALTIES.
   3. THE PROVISIONS OF THIS ARTICLE 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, OR AS TO  PREEMPT  ANY  MUNICI-
 PALITY  FROM  ADOPTING  A  LOCAL  LAW,  RULE, OR REGULATION ESTABLISHING
 REQUIREMENTS, STANDARDS, OR ENFORCEMENT MEASURES IN  ADDITION  TO  THOSE
 ESTABLISHED UNDER THIS ARTICLE.
   § 1017. POWERS OF THE COMMISSIONER. 1. THE COMMISSIONER SHALL:
   (A)  PROMULGATE  RULES  SPECIFYING  THE  DATA RETENTION, SECURITY, AND
 PRIVACY REQUIREMENTS FOR ALL DATA COLLECTED DURING THE  COURSE  OF,  AND
 ALL RESULTS OR OUTPUTS OF, THE IMPACT ASSESSMENTS REQUIRED BY THIS ARTI-
 CLE;
   (B)  DEVELOP  AND  PUBLISH MODEL EMPLOYER NOTICES FOR THE USE OF ELEC-
 TRONIC MONITORING AND AUTOMATED EMPLOYMENT DECISION TOOLS THAT EMPLOYERS
 MAY UTILIZE IN THEIR ADOPTION OF THE NOTICES REQUIRED BY  THIS  ARTICLE;
 AND
   (C) PROMULGATE SUCH OTHER RULES AND REGULATIONS AS MAY BE NECESSARY TO
 CARRY OUT THIS ARTICLE.
   2.  THE  COMMISSIONER  SHALL  ESTABLISH  AN ADMINISTRATIVE PROCESS FOR
 RECEIVING AND INVESTIGATING COMPLAINTS FROM EMPLOYEES AND CANDIDATES  OR
 THEIR  REPRESENTATIVES.  THE  COMMISSIONER SHALL HAVE THE SAME POWERS OF
 INVESTIGATION AS UNDER ARTICLE NINETEEN OF THIS CHAPTER. IF AFTER INVES-
 TIGATION THE COMMISSIONER FINDS THAT AN EMPLOYER OR PERSON HAS  VIOLATED
 ANY  PROVISION  OF  THIS SECTION, THE COMMISSIONER MAY EXERCISE THE SAME
 ENFORCEMENT POWERS PROVIDED UNDER PARAGRAPH (B) OF  SUBDIVISION  ONE  OF
 SECTION  TWO  HUNDRED  FIFTEEN  OF THIS CHAPTER AND MAY ORDER ANY RELIEF
 THAT MAY BE APPROPRIATE OR NECESSARY FOR CORRECTION OF ANY VIOLATION  OF
 THIS ARTICLE, INCLUDING MANDATING COMPLIANCE WITH THE PROVISIONS OF THIS
 ARTICLE,  SECURING  ANY  OF  THE  REMEDIES AUTHORIZED UNDER THIS ARTICLE
 INCLUDING RECOVERING DAMAGES AND  LIQUIDATED  DAMAGES  AS  SPECIFIED  IN
 SECTION  ONE  THOUSAND FOURTEEN OF THIS ARTICLE AND SECURING INJUNCTIVE,
 DECLARATORY, OR OTHER RELIEF AS MAY BE APPROPRIATE, AND ORDERING PAYMENT
 OF CIVIL PENALTIES OR REASONABLE ATTORNEYS' FEES AND COSTS.
   3. THE COMMISSIONER SHALL ESTABLISH A MEANS  OF  COLLECTING,  STORING,
 AND  MAKING  PUBLICLY  AVAILABLE  ANY IMPACT ASSESSMENTS OR SUMMARIES OF
 IMPACT ASSESSMENTS SUBMITTED BY EMPLOYERS OR VENDORS IN THE  STATE.  THE
 COMMISSIONER  SHALL PROMULGATE RULES AND REGULATIONS BY WHICH EMPLOYERS,
 VENDORS, OR EMPLOYEES MAY REQUEST THE REDACTION OF  CERTAIN  INFORMATION
 FROM  SAID  IMPACT ASSESSMENTS OR SUMMARIES THEREOF, IF THAT INFORMATION
 IS PROPRIETARY, SENSITIVE, OR POSES A THREAT TO THE PRIVACY OF EMPLOYEES
 OR CANDIDATES.
   § 2. Section 52-c of the civil rights law, as added by chapter 583  of
 the  laws  of  2021,  is  renumbered section 52-e and 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.
 S. 7623--B                         15
 
   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 ARTICLE THIRTY-SIX  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
 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.
   § 3. This act shall take effect on the one hundred eightieth day after
 it  shall have become a law. Effective immediately, the addition, amend-
 ment and/or repeal of any rule or regulation necessary for the implemen-
 tation of this act on its effective date are authorized to be  made  and
 completed on or before such effective date.