S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   9315
 
                           I N  A S S E M B L Y
 
                             February 28, 2024
                                ___________
 
 Introduced  by M. of A. ALVAREZ -- read once and referred to the Commit-
   tee on Labor
 
 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 section 203-g to
 read as follows:
   § 203-G. 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,  AUTOMATED SYSTEM, OR ALGORITHM UTILIZING MACHINE LEARNING, STATIS-
 TICAL MODELING, DATA  ANALYTICS,  ARTIFICIAL  INTELLIGENCE,  OR  SIMILAR
 METHODS  THAT ISSUES A SIMPLIFIED OUTPUT, INCLUDING A SCORE, CLASSIFICA-
 TION, RANKING, OR RECOMMENDATION, THAT IS  USED  TO  ASSIST  OR  REPLACE
 DECISION  MAKING  FOR  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.
   (B) "BIAS AUDIT" MEANS AN IMPARTIAL EVALUATION BY AN INDEPENDENT AUDI-
 TOR,  WHICH  SHALL  INCLUDE,  AT  A MINIMUM, THE TESTING OF AN AUTOMATED
 EMPLOYMENT DECISION TOOL  TO  ASSESS  THE  TOOL'S  DISPARATE  IMPACT  ON
 EMPLOYEES  BECAUSE OF THEIR AGE, RACE, CREED, COLOR, ETHNICITY, NATIONAL
 ORIGIN, DISABILITY, CITIZENSHIP OR IMMIGRATION STATUS, MARITAL OR  FAMI-
 LIAL  STATUS, MILITARY STATUS, RELIGION, OR SEX, INCLUDING SEXUAL ORIEN-
 TATION,  GENDER  IDENTITY,  GENDER  EXPRESSION,   PREGNANCY,   PREGNANCY
 OUTCOMES, AND REPRODUCTIVE HEALTHCARE CHOICES.
   (C) "CANDIDATE" MEANS ANY NATURAL PERSON OR THEIR AUTHORIZED REPRESEN-
 TATIVE  SEEKING EMPLOYMENT THROUGH AN APPLICATION, OR WHO IS SCREENED OR
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
                                                            LBD11940-08-4
              

 A. 9315                             2
 
 EVALUATED FOR RECRUITMENT, FOR A POSITION OF EMPLOYMENT  BY  A  BUSINESS
 OPERATING IN THE STATE.
   (D) "ELECTRONIC MONITORING TOOL" MEANS ANY SYSTEM THAT FACILITATES THE
 COLLECTION OF DATA CONCERNING WORKER ACTIVITIES OR COMMUNICATIONS BY ANY
 MEANS  OTHER  THAN DIRECT OBSERVATION BY A NATURAL PERSON, INCLUDING THE
 USE OF A COMPUTER,  TELEPHONE,  WIRE,  RADIO,  CAMERA,  ELECTROMAGNETIC,
 PHOTOELECTRONIC, OR PHOTO-OPTICAL SYSTEM.
   (E) "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. "EMPLOYER" INCLUDES ANY  OF  THE  EMPLOYER'S  LABOR
 CONTRACTORS.
   (F)  "EMPLOYEE" MEANS ANY NATURAL PERSON OR THEIR AUTHORIZED REPRESEN-
 TATIVE ACTING FOR, EMPLOYED BY, OR AN INDEPENDENT  CONTRACTOR  PROVIDING
 SERVICE TO, OR THROUGH, A BUSINESS OPERATING IN THE STATE.
   (G) "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 FACIAL
 RECOGNITION, EMOTION, AND GAIT RECOGNITION;
   (F) INPUTS TO 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.
   (H) "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,
 A. 9315                             3
 
 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 INDEPENDENT CONTRACTORS
 OR  CANDIDATES  FOR EMPLOYMENT, THIS MEANS THE EQUIVALENT OF THESE DECI-
 SIONS BASED ON THEIR CONTRACT WITH OR RELATIONSHIP TO THE EMPLOYER.
   (I) "VENDOR" MEANS ANY PERSON 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.
   2. (A) IT SHALL BE UNLAWFUL FOR AN EMPLOYER TO USE AN ELECTRONIC MONI-
 TORING TOOL TO COLLECT EMPLOYEE DATA UNLESS:
   (I) THE ELECTRONIC MONITORING TOOL IS PRIMARILY INTENDED 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 AND COLLECTS THE LEAST AMOUNT OF DATA  NECES-
 SARY TO ACCOMPLISH THE PURPOSE.
   (B)  ANY  EMPLOYER  THAT USES AN ELECTRONIC MONITORING TOOL SHALL GIVE
 PRIOR WRITTEN NOTICE TO ALL EMPLOYEES WHO MAY BE SUBJECT  TO  ELECTRONIC
 MONITORING  AND POST SAID NOTICE IN A CONSPICUOUS PLACE WHICH IS READILY
 AVAILABLE FOR VIEWING BY  EMPLOYEES,  PURSUANT  TO  SUBDIVISION  TWO  OF
 SECTION  FIFTY-TWO-E OF THE CIVIL RIGHTS LAW. SUCH NOTICE SHALL INCLUDE,
 AT A MINIMUM, THE FOLLOWING:
   (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
 A. 9315                             4
 
   (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 DESTROY ANY EMPLOYEE DATA COLLECTED VIA AN ELEC-
 TRONIC  MONITORING TOOL WHEN THE INITIAL PURPOSE FOR COLLECTING THE DATA
 HAS BEEN SATISFIED OR AT THE END OF THE EMPLOYEE'S RELATIONSHIP WITH THE
 EMPLOYER, 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 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.
   (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.
   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 THREATEN
 THE HEALTH, WELFARE, SAFETY, OR LEGAL RIGHTS 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 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,
 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 OPPOSITION OF OR REFUSAL TO SUBMIT TO A PRACTICE THAT
 THE EMPLOYEE BELIEVES IN GOOD FAITH THAT VIOLATE THIS SECTION; OR
 A. 9315                             5
 
   (XI) WHERE EMPLOYEES HAVE UNION REPRESENTATION, REFUSE TO BARGAIN OVER
 THE USE 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  TWO  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 A BIAS AUDIT OF AN AUTOMATED EMPLOYMENT DECISION
 TOOL PURSUANT TO SUBDIVISION FOUR OF THIS SECTION.
   (D) 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.
   (E)  AN  EMPLOYER  SHALL  NOT  RELY  SOLELY ON EMPLOYEE DATA COLLECTED
 THROUGH ELECTRONIC MONITORING  WHEN  MAKING  HIRING,  PROMOTION,  TERMI-
 NATION, DISCIPLINARY, OR COMPENSATION DECISIONS.
   (F)  THE  INFORMATION  AND  JUDGMENTS INVOLVED IN AN EMPLOYER'S 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.
   (G) DATA THAT PROVIDES EVIDENCE OF CRIMINAL ACTIVITY,  WHEN  INDEPEND-
 ENTLY  CORROBORATED  BY  THE  EMPLOYER,  OR  CAPTURED THROUGH THE USE OF
 REASONABLE SECURITY MEASURES THAT COMPLY WITH PARAGRAPH (A) OF  SUBDIVI-
 SION TWO OF THIS SECTION, IS EXEMPT FROM THIS SUBDIVISION.
   4.  (A)  IT  SHALL  BE  UNLAWFUL  FOR  AN EMPLOYER TO USE AN AUTOMATED
 EMPLOYMENT DECISION TOOL FOR AN EMPLOYMENT DECISION UNLESS SUCH TOOL HAS
 BEEN THE SUBJECT OF A BIAS AUDIT. BIAS AUDITS 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  SECTION,  WITHIN  SIX  MONTHS  OF  THE  EFFECTIVE DATE OF THIS
 SECTION; AND
   (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
 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 DISPARITIES IN THE OUTPUTS
 PRODUCED BY THE TOOL THAT MAY RESULT IN A DISPARATE  IMPACT  ON  PERSONS
 A. 9315                             6
 
 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) IDENTIFY AND DESCRIBE ANY OTHER ASSESSMENT OF RISKS OF DISCRIM-
 INATION  OR  A  DISPARATE  IMPACT  OF THE TOOL ON MEMBERS OF A PROTECTED
 CLASS THAT ARISE OVER THE COURSE OF THE BIAS AUDIT, AND WHAT ACTIONS MAY
 BE TAKEN TO REDUCE OR REMEDY THAT RISK;
   (IX) 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
   (X)  BE SUBMITTED IN ITS ENTIRETY OR AN ACCESSIBLE SUMMARY FORM TO THE
 DEPARTMENT FOR INCLUSION IN A PUBLIC  REGISTRY  OF  SUCH  AUDITS  WITHIN
 SIXTY DAYS OF COMPLETION AND DISTRIBUTED TO EMPLOYEES WHO MAY BE SUBJECT
 TO THE TOOL.
   (B)  AN  EMPLOYER  SHALL  CONDUCT OR COMMISSION SUBSEQUENT AUDITS EACH
 YEAR THAT THE TOOL IS IN USE TO ASSIST OR REPLACE EMPLOYMENT  DECISIONS.
 SUBSEQUENT AUDITS SHALL COMPLY WITH THE REQUIREMENTS OF PARAGRAPH (A) OF
 THIS SUBDIVISION, AND SHALL ASSESS AND DESCRIBE ANY CHANGE IN THE VALID-
 ITY 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 A BIAS AUDIT.  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 SPECIFICATIONS OF THE
 TOOL AS IT WAS USED AT  THE  TIME  OF  THAT  EMPLOYMENT  DECISION.  SUCH
 DOCUMENTATION  SHALL  BE  STORED  IN  SUCH A MANNER AS TO BE LEGIBLE AND
 ACCESSIBLE TO THE PARTY CONDUCTING A BIAS AUDIT.
   (D) IF AN INITIAL OR SUBSEQUENT BIAS AUDIT REQUIRES THE COLLECTION  OF
 SENSITIVE  EMPLOYEE  DATA TO ASSESS A TOOL'S DISPARATE IMPACT ON EMPLOY-
 EES, SUCH DATA SHALL BE COLLECTED, PROCESSED, STORED,  AND  RETAINED  IN
 SUCH  A  MANNER  AS  TO  PROTECT THE PRIVACY OF EMPLOYEES. EMPLOYEE DATA
 PROVIDED TO AUDITORS FOR THE PURPOSE OF A BIAS AUDIT SHALL NOT BE SHARED
 WITH THE EMPLOYER, NOR SHALL IT BE  SHARED  WITH  ANY  PERSON,  BUSINESS
 ENTITY,   OR  OTHER  ORGANIZATION  UNLESS  STRICTLY  NECESSARY  FOR  THE
 COMPLETION OF THE BIAS AUDIT.
   (E) IF AN INITIAL OR SUBSEQUENT BIAS AUDIT 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 LIMIT ACCESSIBILITY  FOR  PERSONS  WITH  DISABILITIES,  AN
 EMPLOYER SHALL:
   (I)  TAKE  REASONABLE  AND  APPROPRIATE STEPS TO REDUCE OR 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 AUDIT FINDING OF A DISPARATE IMPACT
 OR LIMIT ON ACCESSIBILITY IS ERRONEOUS,  OR  THAT  THE  STEPS  TAKEN  IN
 ACCORDANCE  WITH SUBPARAGRAPH (I) OF THIS PARAGRAPH SUFFICIENTLY ADDRESS
 THOSE FINDINGS SUCH THAT THE TOOL MAY BE  LAWFULLY  USED  IN  ACCORDANCE
 A. 9315                             7
 
 WITH  THIS  SECTION,  DESCRIBE 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; OR
   (III) IF THE EMPLOYER BELIEVES THE AUDIT FINDING OF A DISPARATE IMPACT
 OR LIMIT ON ACCESSIBILITY IS PART OF A LAWFUL AFFIRMATIVE ACTION PLAN OR
 OTHER LAWFUL EFFORT TO REDUCE OR ELIMINATE BIAS IN EMPLOYMENT DECISIONS,
 DESCRIBE  SUCH  PLAN OR EFFORT IN WRITING TO EMPLOYEES, THE AUDITOR, AND
 THE DEPARTMENT.
   (F) IT SHALL BE  UNLAWFUL  FOR  AN  INDEPENDENT  AUDITOR,  VENDOR,  OR
 EMPLOYER  TO  MANIPULATE, CONCEAL, OR MISREPRESENT THE RESULTS OF A BIAS
 AUDIT.
   5. ANY EMPLOYER THAT USES AN AUTOMATED EMPLOYMENT DECISION TOOL  SHALL
 NOTIFY  EMPLOYEES  AND  CANDIDATES  SUBJECT TO THE TOOL NO LESS THAN TEN
 BUSINESS DAYS BEFORE SUCH USE:
   (A) THAT AN  AUTOMATED  EMPLOYMENT  DECISION  TOOL  WILL  BE  USED  IN
 CONNECTION  WITH THE ASSESSMENT OR EVALUATION OF SUCH EMPLOYEE OR CANDI-
 DATE;
   (B) 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;
   (C)  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;
   (D) THE RESULTS OF THE MOST RECENT BIAS AUDIT OF THE AUTOMATED EMPLOY-
 MENT 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;
   (E) 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
   (F)  INFORMATION  ABOUT  HOW THE EMPLOYEE OR CANDIDATE MAY (I) REQUEST
 INTERNAL REVIEW OF THE EMPLOYMENT DECISION MADE BY THE AUTOMATED EMPLOY-
 MENT DECISION TOOL IN ACCORDANCE WITH SUBDIVISION SEVEN OF THIS  SECTION
 AND  (II)  NOTIFICATION  OF  THE EMPLOYEE OR CANDIDATE'S RIGHT TO FILE A
 COMPLAINT IN A CIVIL COURT IN ACCORDANCE WITH SUBDIVISION EIGHT OF  THIS
 SECTION.
   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 INTENSIFY THE CONDITIONS OF WORK OR
 TO HARM THE HEALTH AND SAFETY OF EMPLOYEES, INCLUDING BY SETTING  UNREA-
 SONABLE 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;
   (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;
 A. 9315                             8
 
   (VI)  TO SUBTRACT FROM AN EMPLOYEE'S WAGES TIME SPENT EXERCISING THEIR
 LEGAL RIGHTS; OR
   (VII)  THAT  INVOLVES 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 ESTABLISH MEANINGFUL HUMAN OVERSIGHT OF  HIRING,
 PROMOTION,  TERMINATION, DISCIPLINARY OR COMPENSATION DECISIONS ASSISTED
 OR REPLACED BY AUTOMATED EMPLOYMENT  DECISION  TOOLS.  MEANINGFUL  HUMAN
 OVERSIGHT REQUIRES:
   (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 BIAS AUDIT 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
 CLAUSE (B) OF THIS SUBPARAGRAPH.
   (II)  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,
 REFUSE TO BARGAIN OVER THE USE OF AUTOMATED EMPLOYMENT DECISION TOOLS.
   (D)  AN  EMPLOYER SHALL NOT REQUIRE EMPLOYEES OR CANDIDATES THAT APPLY
 FOR A POSITION OF EMPLOYMENT 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 SOLELY AS A
 RESULT OF THEIR REQUEST FOR ACCOMMODATION.
   7. (A) AN EMPLOYER SHALL OFFER EMPLOYEES AND CANDIDATES  A  MEANINGFUL
 OPPORTUNITY  TO  REQUEST  A REEVALUATION OF THE RESULTS OF AN EMPLOYMENT
 DECISION MADE OR ASSISTED BY AN AUTOMATED EMPLOYMENT DECISION  TOOL,  IF
 AN EMPLOYEE OR CANDIDATE BELIEVES OR SUSPECTS THAT THE DECISION RESULTED
 FROM  INACCURACY,  ERROR, OR BIAS IN THE TOOL, THAT THE TOOL WAS USED AS
 THE SOLE BASIS FOR THE DECISION, OR THAT THE EMPLOYER'S USE OF THE  TOOL
 IN  SOME  OTHER  WAY  VIOLATES  THE  PROVISIONS OF THIS SECTION, AND THE
 EMPLOYEE OR CANDIDATE WAS MEANINGFULLY HARMED  BY  THE  OUTCOME  OF  THE
 EMPLOYMENT  DECISION.  AN EMPLOYEE OR CANDIDATE SHALL WITHIN THIRTY DAYS
 OF BEING NOTIFIED OF THE EMPLOYMENT DECISION PROVIDE THE EMPLOYER WITH A
 WRITTEN REQUEST FOR REEVALUATION. SUCH WRITTEN REQUEST SHALL INCLUDE:
   (I) THE PERSON'S NAME, THE EMPLOYMENT DECISION AT ISSUE, AND  HOW  THE
 PERSON WAS HARMED BY THE OUTCOME OF THE EMPLOYMENT DECISION;
   (II)  WHY  THE PERSON BELIEVES OR SUSPECTS THE EMPLOYMENT DECISION WAS
 INFORMED BY AN INACCURATE, ERRONEOUS, OR BIASED OUTPUT, WAS  THE  RESULT
 OF  AN  UNLAWFUL SOLE RELIANCE ON AN AUTOMATED EMPLOYMENT DECISION TOOL,
 OR OTHERWISE VIOLATED THE PROVISIONS OF THIS SECTION;
   (III) ANY EVIDENCE THAT MAY SUPPORT THE PERSON'S BELIEF OR  SUSPICION;
 AND
 A. 9315                             9
 
   (IV) WHAT REASONABLE REMEDIAL ACTION THE PERSON WOULD LIKE THE EMPLOY-
 ER  TO  TAKE  TO  INVESTIGATE  OR REMEDY THE BELIEVED OR SUSPECTED HARM,
 WHICH MAY INCLUDE PROVIDING THE EMPLOYEE OR CANDIDATE  WITH  OUTPUTS  OR
 DOCUMENTATION  ASSOCIATED  WITH  THE  EMPLOYMENT DECISION, PROVIDING THE
 EMPLOYEE  OR  CANDIDATE  WITH DOCUMENTATION ABOUT THE TOOL'S MOST RECENT
 BIAS AUDIT, OR REPROCESSING THE EMPLOYEE OR CANDIDATE'S DATA THROUGH THE
 TOOL.
   (B) AN EMPLOYER SHALL RESPOND IN WRITING TO AN EMPLOYEE OR CANDIDATE'S
 WRITTEN REQUEST FOR REEVALUATION WITHIN SIXTY DAYS OF  RECEIPT  OF  SUCH
 REQUEST. SUCH WRITTEN RESPONSE SHALL INCLUDE:
   (I) ANY EMPLOYMENT DECISION TOOL OUTPUTS REGARDING THE PERSON PURPORT-
 ING TO BE HARMED BY THE EMPLOYMENT DECISION THAT WERE USED IN THE MAKING
 OF THE EMPLOYMENT DECISION;
   (II) A DESCRIPTION OF THE INFORMATION OTHER THAN THE AUTOMATED EMPLOY-
 MENT DECISION TOOL OUTPUT THAT CONTRIBUTED TO THE EMPLOYMENT DECISION;
   (III)  WHETHER  THE  EMPLOYER  AGREES WITH THE EMPLOYEE OR CANDIDATE'S
 BELIEF OR SUSPICION THAT THE DECISION WAS  INFORMED  BY  AN  INACCURATE,
 ERRONEOUS, OR BIASED TOOL OR OUTPUT, THAT THE TOOL WAS THE UNLAWFUL SOLE
 BASIS  FOR  THE  DECISION,  OR  THAT THE EMPLOYER OTHERWISE VIOLATED THE
 PROVISIONS OF THIS SECTION IN ITS USE OF THE TOOL, AND WHY OR WHY NOT;
   (IV) IF THE EMPLOYER DISAGREES WITH THE EMPLOYEE OR CANDIDATE'S BELIEF
 OR SUSPICION, ANY EVIDENCE SUPPORTING THE TOOL OR OUTPUT'S ACCURACY  AND
 VALIDITY,  THE  EXISTENCE  OF  MEANINGFUL HUMAN OVERSIGHT, OR THE USE OF
 BASES OTHER THAN THE TOOL IN THE MAKING OF THE DECISION;
   (V) IF THE EMPLOYEE OR CANDIDATE REQUESTED THE REPROCESSING  OF  THEIR
 DATA  THROUGH THE TOOL, THE RESULTS OR OUTPUTS OF THAT REPROCESSING, AND
 WHETHER THE RESULTS OF THE  REPROCESSING  HAVE  CHANGED  THE  EMPLOYER'S
 EMPLOYMENT DECISION, AND WHY OR WHY NOT; AND
   (VI)  IF  THE  EMPLOYER REFUSES TO TAKE ANY REASONABLE REMEDIAL ACTION
 REQUESTED BY THE EMPLOYEE OR CANDIDATE, WHY THEY REFUSE TO DO SO.
   8. (A) IF AN EMPLOYER FAILS TO RESPOND TO AN EMPLOYEE  OR  CANDIDATE'S
 REQUEST  FOR  REEVALUATION, OR IF THE 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 SECTION, THE EMPLOYEE OR CANDIDATE MAY INITIATE AN ACTION  IN  A
 COURT  OF  COMPETENT  JURISDICTION  TO  ENFORCE  THE  PROVISIONS OF THIS
 SECTION. AN EMPLOYER THAT VIOLATES THIS  SECTION  SHALL  BE  LIABLE  FOR
 ACTUAL  DAMAGES  TO  ANY EMPLOYEE OR CANDIDATE THAT HAS SUFFERED DAMAGES
 DUE TO SUCH VIOLATION, REASONABLE ATTORNEYS' FEES AND COSTS, AND, UNLESS
 THE EMPLOYER PROVES A GOOD FAITH BASIS TO BELIEVE THAT ITS ACTIONS  WERE
 IN  COMPLIANCE  WITH THE LAW, ONE HUNDRED PERCENT OF THE TOTAL AMOUNT OF
 ACTUAL DAMAGES, EXCEPT SUCH  LIQUIDATED  DAMAGES  MAY  BE  UP  TO  THREE
 HUNDRED PERCENT IF FOUND THAT THE ACTIONS WERE WILLFUL.
   (B)  IN  ANY  CIVIL ACTION CLAIMING THAT AN EMPLOYER HAS VIOLATED THIS
 SECTION 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 FIFTY EMPLOYEES, THE VENDOR, NOT THE
 SMALL EMPLOYER, SHALL BE LIABLE FOR ANY UNLAWFUL ACTS.
   9. (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,
 A. 9315                            10
 
 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 THIS SECTION.
   (C) FAILURE TO PROVIDE ANY NOTICE TO A CANDIDATE  OR  AN  EMPLOYEE  IN
 VIOLATION  OF SUBDIVISION TWO OR FIVE OF THIS SECTION SHALL CONSTITUTE A
 SEPARATE 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.
   10. THE ATTORNEY GENERAL MAY INITIATE IN A COURT OF  COMPETENT  JURIS-
 DICTION  ACTION  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 APPROPRIATE.
   11.  THE PROVISIONS OF THIS SECTION 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.
   §  2. (a) The department of labor shall promulgate any rules and regu-
 lations necessary to implement the provisions of this section.
   (b) The department of labor shall within one hundred  eighty  days  of
 this act becoming a law have established a means of collecting, storing,
 and  making  publicly  available  any  bias  audits or summaries of bias
 audits submitted by employers or vendors in the state.  Such  department
 shall  promulgate  rules and regulations by which employers, vendors, or
 employees may request the redaction of  certain  information  from  said
 bias  audits  or  summaries thereof, if that information is proprietary,
 sensitive, or poses a threat to the privacy of employees or candidates.
   § 3. Section 52-c of the civil rights law, as added by chapter 583  of
 the  laws  of 2021, is renumbered section 52-e and is 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.
   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 SUBDIVISION TWO OF SECTION
 TWO HUNDRED THREE-G 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
 A. 9315                            11
 
 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.
   § 4. 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
 ________________________________________________________________________
 
                                  9315--A
 
                           I N  A S S E M B L Y
 
                             February 28, 2024
                                ___________
 
 Introduced  by M. of A. ALVAREZ -- read once and referred to the Commit-
   tee on Labor -- 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
 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
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
              

                                                            LBD11940-12-4
 A. 9315--A                          2
 
 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
 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-
 A. 9315--A                          3
 
 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
   (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
 A. 9315--A                          4
 
 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:
   (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;
 A. 9315--A                          5
 
   (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.
   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;
 A. 9315--A                          6
 
   (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:
   (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. 9315--A                          7
 
   (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
 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;
 A. 9315--A                          8
 
   (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
 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:
 A. 9315--A                          9
 
   (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
   (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;
 A. 9315--A                         10
 
   (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.
   (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.
 A. 9315--A                         11
 
   (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;
   (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;
 A. 9315--A                         12
 
   (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
   (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
 A. 9315--A                         13
 
 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.
   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.
 A. 9315--A                         14
 
   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.
   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
 A. 9315--A                         15
 
 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.