S T A T E O F N E W Y O R K
________________________________________________________________________
7273
2021-2022 Regular Sessions
I N A S S E M B L Y
April 29, 2021
___________
Introduced by M. of A. BURGOS -- read once and referred 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.
(C) UPON INITIAL ENROLLMENT IN AN ELECTRONIC EMPLOYMENT ELIGIBILITY
VERIFICATION SYSTEM, AN EMPLOYER ENROLLED IN E-VERIFY OR ANY OTHER
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD07212-01-1
A. 7273 2
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
NOT DISSEMINATED TO ANY PERSON OTHER THAN EMPLOYEES WHO NEED SUCH INFOR-
A. 7273 3
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 TWO HUNDRED NINE-
TY-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-x
to read as follows:
§ 99-X. 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.