S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                  615--A
     Cal. No. 113
 
                        2021-2022 Regular Sessions
 
                             I N  S E N A T E
 
                                (PREFILED)
 
                              January 6, 2021
                                ___________
 
 Introduced  by  Sens.  RAMOS, JACKSON -- read twice and ordered printed,
   and when printed to be committed to the Committee on Labor -- reported
   favorably from said committee, ordered to  first  and  second  report,
   ordered  to  a third reading, amended and ordered reprinted, retaining
   its place in the order of third reading
 
 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-h  to
 read as follows:
   §  201-H.  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; OR (II)  A
 UNIT  OF  STATE  OR  LOCAL GOVERNMENT; AND (III) SHALL INCLUDE AN AGENT,
 REPRESENTATIVE OR DESIGNEE OF THE EMPLOYER.
   (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 WEB SITE PROFILES
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
              

                       [ ] is old law to be omitted.
                                                            LBD04814-02-1

 S. 615--A                           2
 
 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
 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.

 S. 615--A                           3
 
   (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.
   § 2. This act shall take effect on the one hundred eightieth day after
 it shall have become a law.