S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                    836
 
                        2023-2024 Regular Sessions
 
                           I N  A S S E M B L Y
 
                             January 11, 2023
                                ___________
 
 Introduced  by  M.  of  A. DINOWITZ, L. ROSENTHAL, FAHY, COLTON, WEPRIN,
   REYES, CRUZ, LUNSFORD, DICKENS, JACOBSON -- Multi-Sponsored by  --  M.
   of  A.  COOK,  HYNDMAN  --  read once and referred to the Committee on
   Labor
 
 AN ACT to amend the labor law, in relation to  prohibiting  an  employer
   from  requesting  or  requiring that an employee or applicant disclose
   any user name, password, or  other  means  for  accessing  a  personal
   account through specified electronic communications devices
 
   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 201-i  to
 read as follows:
   §  201-I.  REQUEST  FOR ACCESS TO PERSONAL ACCOUNTS PROHIBITED. 1. FOR
 PURPOSES OF THIS SECTION, THE FOLLOWING WORDS SHALL HAVE  THE  FOLLOWING
 MEANINGS:
   (A) "APPLICANT" MEANS AN APPLICANT FOR EMPLOYMENT.
   (B)  "ELECTRONIC  COMMUNICATIONS  DEVICE"  MEANS  ANY DEVICE THAT USES
 ELECTRONIC SIGNALS TO CREATE, TRANSMIT, AND RECEIVE INFORMATION, INCLUD-
 ING, BUT NOT LIMITED TO COMPUTERS, TELEPHONES, PERSONAL DIGITAL  ASSIST-
 ANTS AND OTHER SIMILAR DEVICES.
   (C)  "EMPLOYER"  MEANS  (I)  A PERSON OR ENTITY ENGAGED IN A BUSINESS,
 INDUSTRY, PROFESSION, TRADE OR OTHER ENTERPRISE IN THE STATE;  (II)  THE
 STATE  OF  NEW  YORK;  (III)  A COUNTY, CITY, TOWN, VILLAGE OR ANY OTHER
 POLITICAL SUBDIVISION OR CIVIL DIVISION OF  THE  STATE;  (IV)  A  SCHOOL
 DISTRICT OR ANY GOVERNMENT ENTITY OPERATING A PUBLIC SCHOOL, COLLEGE, OR
 UNIVERSITY;  (V) A PUBLIC IMPROVEMENT OR SPECIAL DISTRICT; (VI) A PUBLIC
 AUTHORITY, COMMISSION OR PUBLIC BENEFIT CORPORATION; OR (VII) ANY  OTHER
 PUBLIC  CORPORATION, AGENCY, INSTRUMENTALITY OR UNIT OF GOVERNMENT WHICH
 EXERCISES GOVERNMENTAL POWER UNDER THE LAWS OF  THE  STATE;  AND  (VIII)
 SHALL INCLUDE AN AGENT, REPRESENTATIVE OR DESIGNEE OF THE EMPLOYER.
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
                                                            LBD00726-01-3
 A. 836                              2
              

 
   (D)  "PERSONAL  ACCOUNT"  MEANS AN ACCOUNT OR PROFILE ON AN ELECTRONIC
 MEDIUM WHERE USERS MAY CREATE, SHARE, AND VIEW  USER-GENERATED  CONTENT,
 INCLUDING  UPLOADING  OR DOWNLOADING VIDEOS OR STILL PHOTOGRAPHS, BLOGS,
 VIDEO BLOGS, PODCASTS, INSTANT MESSAGES, OR INTERNET WEBSITE PROFILES OR
 LOCATIONS  THAT  IS  USED BY AN EMPLOYEE OR AN APPLICANT EXCLUSIVELY FOR
 PERSONAL PURPOSES.
   2. (A) EXCEPT AS PROVIDED IN PARAGRAPH (B)  OF  THIS  SUBDIVISION,  IT
 SHALL  BE  UNLAWFUL  FOR  ANY EMPLOYER TO REQUEST, REQUIRE OR COERCE ANY
 EMPLOYEE OR APPLICANT FOR EMPLOYMENT TO:
   (I) DISCLOSE ANY USER NAME AND PASSWORD, PASSWORD, OR OTHER  AUTHENTI-
 CATION INFORMATION FOR ACCESSING A PERSONAL ACCOUNT THROUGH AN ELECTRON-
 IC COMMUNICATIONS DEVICE;
   (II)  ACCESS  THE  EMPLOYEE'S  OR  APPLICANT'S PERSONAL ACCOUNT IN THE
 PRESENCE OF THE EMPLOYER; OR
   (III) REPRODUCE IN ANY MANNER PHOTOGRAPHS, VIDEO, OR OTHER INFORMATION
 CONTAINED WITHIN A PERSONAL ACCOUNT OBTAINED BY THE MEANS PROHIBITED  IN
 THIS PARAGRAPH.
   (B)  AN  EMPLOYER  MAY  REQUIRE AN EMPLOYEE TO DISCLOSE ANY USER NAME,
 PASSWORD OR OTHER MEANS FOR ACCESSING NONPERSONAL ACCOUNTS THAT  PROVIDE
 ACCESS TO THE EMPLOYER'S INTERNAL COMPUTER OR INFORMATION SYSTEMS.
   (C)  FOR  THE  PURPOSES OF THIS SECTION, "ACCESS" SHALL NOT INCLUDE AN
 EMPLOYEE OR APPLICANT VOLUNTARILY  ADDING  AN  EMPLOYER,  AGENT  OF  THE
 EMPLOYER, OR EMPLOYMENT AGENCY TO THEIR LIST OF CONTACTS ASSOCIATED WITH
 A PERSONAL INTERNET ACCOUNT.
   3. AN EMPLOYER MAY NOT:
   (A)  DISCHARGE,  DISCIPLINE,  OR  OTHERWISE  PENALIZE  OR  THREATEN TO
 DISCHARGE, DISCIPLINE, OR OTHERWISE PENALIZE AN EMPLOYEE FOR AN  EMPLOY-
 EE'S  REFUSAL  TO DISCLOSE ANY INFORMATION SPECIFIED IN PARAGRAPH (A) OF
 SUBDIVISION TWO OF THIS SECTION; OR
   (B) FAIL OR REFUSE TO HIRE ANY APPLICANT AS A  RESULT  OF  THE  APPLI-
 CANT'S REFUSAL TO DISCLOSE ANY INFORMATION SPECIFIED IN PARAGRAPH (A) OF
 SUBDIVISION TWO OF THIS SECTION.
   4.  IT SHALL BE AN AFFIRMATIVE DEFENSE TO AN ACTION UNDER THIS SECTION
 THAT THE EMPLOYER ACTED TO COMPLY WITH REQUIREMENTS OF A FEDERAL,  STATE
 OR LOCAL LAW.
   5. (A) NOTHING IN THIS SECTION SHALL PROHIBIT AN EMPLOYER FROM:
   (I) REQUESTING OR REQUIRING AN EMPLOYEE TO DISCLOSE ACCESS INFORMATION
 TO  AN  ACCOUNT  PROVIDED BY THE EMPLOYER WHERE SUCH ACCOUNT IS USED FOR
 BUSINESS PURPOSES AND THE EMPLOYEE WAS  PROVIDED  PRIOR  NOTICE  OF  THE
 EMPLOYER'S RIGHT TO REQUEST OR REQUIRE SUCH ACCESS INFORMATION;
   (II)  REQUESTING  OR REQUIRING AN EMPLOYEE TO DISCLOSE ACCESS INFORMA-
 TION TO AN ACCOUNT  KNOWN  TO  AN  EMPLOYER  TO  BE  USED  FOR  BUSINESS
 PURPOSES;
   (III)  ACCESSING AN ELECTRONIC COMMUNICATIONS DEVICE PAID FOR IN WHOLE
 OR IN PART BY THE EMPLOYER WHERE THE PROVISION OF OR  PAYMENT  FOR  SUCH
 ELECTRONIC COMMUNICATIONS DEVICE WAS CONDITIONED ON THE EMPLOYER'S RIGHT
 TO  ACCESS SUCH DEVICE AND THE EMPLOYEE WAS PROVIDED PRIOR NOTICE OF AND
 EXPLICITLY AGREED TO SUCH CONDITIONS. HOWEVER, NOTHING IN THIS  SUBPARA-
 GRAPH  SHALL  PERMIT AN EMPLOYER TO ACCESS ANY PERSONAL ACCOUNTS ON SUCH
 DEVICE;
   (IV) COMPLYING WITH A COURT ORDER IN OBTAINING OR  PROVIDING  INFORMA-
 TION  FROM, OR ACCESS TO, AN EMPLOYEE'S ACCOUNTS AS SUCH COURT ORDER MAY
 REQUIRE;
   (V)  RESTRICTING  OR  PROHIBITING  AN  EMPLOYEE'S  ACCESS  TO  CERTAIN
 WEBSITES  WHILE USING AN EMPLOYER'S NETWORK OR WHILE USING AN ELECTRONIC
 COMMUNICATIONS DEVICE PAID FOR IN WHOLE OR PART BY  THE  EMPLOYER  WHERE
 A. 836                              3
 
 THE  PROVISION  OF OR PAYMENT FOR SUCH ELECTRONIC COMMUNICATIONS  DEVICE
 WAS CONDITIONED ON THE EMPLOYER'S RIGHT TO RESTRICT SUCH ACCESS AND  THE
 EMPLOYEE  WAS  PROVIDED  PRIOR  NOTICE  OF AND EXPLICITLY AGREED TO SUCH
 CONDITIONS.
   (B)  THIS  SECTION  DOES  NOT  PROHIBIT  OR  RESTRICT AN EMPLOYER FROM
 COMPLYING WITH A DUTY TO SCREEN EMPLOYEES OR APPLICANTS PRIOR TO  HIRING
 OR  TO  MONITOR  OR  RETAIN  EMPLOYEE COMMUNICATIONS THAT IS ESTABLISHED
 UNDER FEDERAL LAW OR BY A SELF REGULATORY ORGANIZATION,  AS  DEFINED  IN
 SECTION  3(A)(26)  OF  THE  SECURITIES  AND EXCHANGE ACT OF 1934, 15 USC
 §78C(A)(26).
   (C) THIS SECTION DOES NOT PROHIBIT OR RESTRICT AN EMPLOYER FROM  VIEW-
 ING,  ACCESSING, OR UTILIZING INFORMATION ABOUT AN EMPLOYEE OR APPLICANT
 THAT CAN BE OBTAINED WITHOUT ANY REQUIRED ACCESS  INFORMATION,  THAT  IS
 AVAILABLE IN THE PUBLIC DOMAIN, OR FOR THE PURPOSES OF OBTAINING REPORTS
 OF MISCONDUCT OR INVESTIGATING MISCONDUCT, PHOTOGRAPHS, VIDEO, MESSAGES,
 OR  OTHER INFORMATION THAT IS VOLUNTARILY SHARED BY AN EMPLOYEE, CLIENT,
 OR OTHER THIRD PARTY THAT THE EMPLOYEE SUBJECT TO SUCH REPORT OR  INVES-
 TIGATION  HAS  VOLUNTARILY GIVEN ACCESS TO CONTAINED WITHIN SUCH EMPLOY-
 EE'S PERSONAL ACCOUNT.
   6. THE PROVISIONS OF THIS SECTION SHALL NOT APPLY TO ANY LAW  ENFORCE-
 MENT AGENCY, A FIRE DEPARTMENT OR A DEPARTMENT OF CORRECTIONS AND COMMU-
 NITY SUPERVISION.
   § 2. This act shall take effect on the one hundred eightieth day after
 it shall have become a law.