Assembly Bill A9638

                             
                     S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   9638
 
                           I N  A S S E M B L Y
 
                             January 21, 2026
                                ___________
 
 Introduced  by  M.  of  A.  GALLAGHER  --  read once and referred to the
   Committee on Labor
 
 AN ACT to amend the labor law, in relation to  prohibiting  surveillance
   wages
 
   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  194-c  to
 read as follows:
   §  194-C.  SURVEILLANCE  WAGES  PROHIBITED.  1.  DEFINITIONS.  FOR THE
 PURPOSES OF THIS SECTION, THE FOLLOWING TERMS SHALL HAVE  THE  FOLLOWING
 MEANINGS:
   A. "WAGE-FIXING ALGORITHM" MEANS A MATHEMATICAL OR COMPUTATIONAL PROC-
 ESS  OR METHODOLOGY IMPLEMENTING A SET OF RULES, INCLUDING WITHOUT LIMI-
 TATION DATA COLLECTED AND USED IN CONJUNCTION WITH ANY SUCH PROCESSES OR
 METHODOLOGIES, TO BE FOLLOWED IN  CALCULATIONS,  DATA  PROCESSING,  DATA
 MINING, MACHINE LEARNING, PATTERN RECOGNITION, AUTOMATED DECISION-MAKING
 OR  PROBLEM-SOLVING  OPERATIONS,  INCLUDING  THOSE THAT TRANSFORM INPUTS
 INTO OUTPUTS, UTILIZED FOR THE PURPOSE OF SETTING OR RECOMMENDING  WAGES
 OR  COMPENSATION  FOR AN INDIVIDUAL OR A CLASS OR GROUP TO WHOM AN INDI-
 VIDUAL BELONGS.
   "WAGE-FIXING ALGORITHM" SHALL NOT INCLUDE ANY SUCH TOOL  WHOSE  INPUTS
 ARE  LIMITED TO JOB REQUIREMENTS, JOB PERFORMANCE, QUALIFICATIONS, LABOR
 MARKET CONDITIONS, OR THE COST OF LIVING IN AN  APPLICABLE  METROPOLITAN
 STATISTICAL  AREA,  MICROPOLITAN  STATISTICAL AREA, COMBINED STATISTICAL
 AREA, COUNTY OR COUNTY EQUIVALENT. FOR THE  PURPOSES  OF  THIS  SECTION,
 "JOB PERFORMANCE" SHALL NOT INCLUDE CUSTOMER REVIEWS.
   B.  "PERSONAL  DATA"  MEANS  ANY  DATA  THAT  IDENTIFIES,  RELATES TO,
 DESCRIBES, IS REASONABLY CAPABLE OF BEING ASSOCIATED WITH, OR  COULD  BE
 REASONABLY  LINKED,  DIRECTLY OR INDIRECTLY, WITH A PARTICULAR PERSON OR
 DEVICE, INCLUDING BUT NOT LIMITED TO:
   (I) NAME OR ALIAS, SIGNATURE, SOCIAL SECURITY NUMBER, POSTAL  ADDRESS,
 TELEPHONE NUMBER, PASSPORT NUMBER, DRIVER'S LICENSE OR STATE IDENTIFICA-
 TION  CARD  NUMBER,  INSURANCE  POLICY  NUMBER,  EMAIL ADDRESS, INTERNET
 PROTOCOL ADDRESS, ACCOUNT NAME, OR OTHER SIMILAR IDENTIFIERS;
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
              

                                                            LBD14494-02-6
 A. 9638                             2
 
   (II) BANK ACCOUNT NUMBER, CREDIT CARD NUMBER, DEBIT CARD NUMBER, CRED-
 IT SCORE OR CREDIT HISTORY, FINANCIAL CIRCUMSTANCES, OR ANY OTHER FINAN-
 CIAL INFORMATION, MEDICAL INFORMATION, OR HEALTH INSURANCE INFORMATION;
   (III)  RECORDS  OF  PERSONAL PROPERTY, PRODUCTS OR SERVICES PURCHASED,
 OBTAINED, OR CONSIDERED, OR OTHER PURCHASING OR CONSUMING  HISTORIES  OR
 TENDENCIES;
   (IV)  PERSONAL,  POLITICAL,  PROFESSIONAL,  OR RELIGIOUS AFFILIATIONS,
 MEMBERSHIPS, RELATIONSHIPS,  OR  ACTIVITIES,  OR  STATUS,  ACTIVITY,  OR
 RELATIONSHIPS  WITHIN  A SOCIAL MEDIA NETWORK, OR ANY OTHER ASSOCIATIONS
 WITH A GROUP, BAND, CLASS, OR TIER OF INDIVIDUALS TO WHICH THE  INDIVID-
 UAL BELONGS;
   (V) INTERNET OR OTHER ELECTRONIC NETWORK ACTIVITY INFORMATION, INCLUD-
 ING  BROWSING  HISTORY,  SEARCH  HISTORY,  AND  INFORMATION  REGARDING A
 PERSON'S INTERACTION WITH AN INTERNET WEBSITE APPLICATION OR  ADVERTISE-
 MENT;
   (VI)  CHARACTERISTICS  OF  PROTECTED  CLASSIFICATIONS  UNDER  STATE OR
 FEDERAL LAW, GEOLOCATION IDENTIFIERS, PHYSICAL DESCRIPTIONS  OR  CHARAC-
 TERISTICS, GENETIC INFORMATION, OR BIOMETRIC INFORMATION; AND
   (VII)  INFERENCES DRAWN FROM ANY OF THE INFORMATION IDENTIFIED IN THIS
 PARAGRAPH TO CREATE A PROFILE ABOUT A PERSON, OR A  CLASS  OR  GROUP  TO
 WHICH SUCH PERSON BELONGS, REFLECTING SUCH PERSON'S PREFERENCES, CHARAC-
 TERISTICS,  PSYCHOLOGICAL  TRENDS, PREDISPOSITIONS, BEHAVIOR, ATTITUDES,
 INTELLIGENCE, ABILITIES, AND APTITUDES.
   "PERSONAL DATA" SHALL NOT INCLUDE LOCATION DATA  THAT  IS  USED  BY  A
 FOR-HIRE VEHICLE AS DEFINED IN SECTION 19-502 OF THE ADMINISTRATIVE CODE
 OF THE CITY OF NEW YORK OR AS OTHERWISE DEFINED IN LOCAL LAW OR RULE, OR
 A  TRANSPORTATION  NETWORK COMPANY VEHICLE AS DEFINED IN SECTION SIXTEEN
 HUNDRED NINETY-ONE OF THE VEHICLE AND TRAFFIC LAW, SOLELY  TO  CALCULATE
 THE  FARE  BASED  ON  MILEAGE  AND TRIP DURATION BETWEEN THE PASSENGER'S
 PICKUP AND DROP-OFF LOCATIONS.
   C. "BEHAVIORAL DATA" MEANS AN INDIVIDUAL'S  OBSERVABLE  OR  MEASURABLE
 ACTIONS,  HABITS,  PREFERENCES, INTERESTS, OR VULNERABILITIES, INCLUDING
 WITHOUT LIMITATION AUDIO, VISUAL, OLFACTORY, THERMAL, AND OTHER  SENSORY
 DATA, AND INFERENCES DRAWN FROM ANY SUCH INFORMATION TO CREATE A PROFILE
 ABOUT  A  PERSON,  OR  A  CLASS  OR  GROUP TO WHICH SUCH PERSON BELONGS,
 REFLECTING SUCH  PERSON'S  PREFERENCES,  CHARACTERISTICS,  PSYCHOLOGICAL
 TRENDS,  PREDISPOSITIONS,  BEHAVIOR, ATTITUDES, INTELLIGENCE, ABILITIES,
 AND APTITUDES.
   2. SURVEILLANCE WAGES PROHIBITED. NO EMPLOYER SHALL  UTILIZE  A  WAGE-
 FIXING  ALGORITHM, OR THE OUTPUT OF A WAGE-FIXING ALGORITHM, IN COMBINA-
 TION WITH PERSONAL OR BEHAVIORAL DATA, WHETHER COLLECTED OR PROCESSED BY
 THE  EMPLOYER  OR  A  THIRD-PARTY,  TO SET OR RECOMMEND WAGES OR COMPEN-
 SATION.
   3. RULES AND REGULATIONS. THE COMMISSIONER MAY PROMULGATE  SUCH  RULES
 AND REGULATIONS AS THE COMMISSIONER DEEMS NECESSARY AND PROPER TO EFFEC-
 TUATE THE PURPOSES AND PROVISIONS OF THIS SECTION.
   4.  VIOLATIONS.  A. THE ATTORNEY GENERAL MAY ENFORCE THE PROVISIONS OF
 THIS SECTION BY CIVIL ACTION IN ANY  COURT  OF  COMPETENT  JURISDICTION.
 SUCH  ACTION  MAY  SEEK TO ENJOIN VIOLATIONS OF THIS SECTION AND RECOVER
 FOR EACH VIOLATION, AND ON BEHALF  OF  ANY  HARMED  WORKER:  (I)  ACTUAL
 DAMAGES  OR  THREE  THOUSAND  DOLLARS,  WHICHEVER IS LARGER; (II) TREBLE
 DAMAGES, WHERE SUCH VIOLATION WAS WILLFUL OR EGREGIOUS; (III)  DISGORGE-
 MENT  OF  PROFITS  OBTAINED  DIRECTLY  OR  INDIRECTLY AS A RESULT OF ANY
 VIOLATION OF THIS SECTION; (IV) ATTORNEYS' FEES AND COSTS; AND  (V)  ANY
 OTHER LEGAL OR EQUITABLE RELIEF THE COURT MAY DEEM JUST AND PROPER.
 A. 9638                             3
 
   B.  THE  COMMISSIONER  MAY  ENFORCE  THE PROVISIONS OF THIS SECTION IN
 ACCORDANCE WITH SECTION TWO HUNDRED EIGHTEEN OF THIS CHAPTER.
   C.  AN  INDIVIDUAL  OR  GROUP OF INDIVIDUALS WHO HAVE BEEN HARMED BY A
 VIOLATION OF THIS SECTION MAY BRING IN ANY COURT OF COMPETENT  JURISDIC-
 TION A CIVIL ACTION TO ENJOIN VIOLATIONS OF THIS SECTION AND RECOVER FOR
 EACH  VIOLATION: (I) ACTUAL DAMAGES OR THREE THOUSAND DOLLARS, WHICHEVER
 IS LARGER; (II) TREBLE DAMAGES, WHERE  SUCH  VIOLATION  WAS  WILLFUL  OR
 EGREGIOUS;  (III) ATTORNEYS' FEES AND COSTS; AND (IV) ANY OTHER LEGAL OR
 EQUITABLE RELIEF THE COURT MAY DEEM JUST AND PROPER.
   D. AN INDIVIDUAL  ALLEGING  A  VIOLATION  OF  THIS  SECTION  SHALL  BE
 PROTECTED  FROM  RETALIATION  PURSUANT TO SECTION TWO HUNDRED FIFTEEN OF
 THIS CHAPTER AND ANY OTHER APPLICABLE LAW.
   E. IN AN ACTION ALLEGING A VIOLATION OF THIS SECTION, THE BURDEN SHALL
 REST WITH THE  EMPLOYER  TO  DEMONSTRATE,  BY  A  PREPONDERANCE  OF  THE
 EVIDENCE,  THAT  A  DIFFERENCE  IN WAGES OR COMPENSATION WAS DUE ONLY TO
 LAWFUL FACTORS.
   § 2. This act shall take effect on the thirtieth day  after  it  shall
 have become a law.