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--B
 
                           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 -- reported and referred
   to the Committee on Codes -- reported and referred to the Committee on
   Ways  and  Means  --  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
 
   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
                       BOUNDARIES ON TECHNOLOGY ACT
 SECTION 1010. DEFINITIONS.
         1011. AUTOMATED EMPLOYMENT DECISION TOOLS; IMPACT ASSESSMENTS.
         1012. AUTOMATED    EMPLOYMENT   DECISION   TOOLS;   NOTICE   AND
                 RESTRICTIONS.
         1013. DATA ACCESS, ACCURACY, AND CORRECTION.
         1014. UNLAWFUL RETALIATION.
         1015. VENDOR NOTICE.
         1016. ENFORCEMENT.
   § 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  DERIVED  FROM MACHINE LEARNING,
 STATISTICAL MODELING, DATA ANALYTICS, ARTIFICIAL INTELLIGENCE, OR  SIMI-
 LAR  METHODS  THAT  ISSUES AN OUTPUT, INCLUDING A SCORE, CLASSIFICATION,
 RANKING, OR RECOMMENDATION THAT IS USED TO ASSIST OR REPLACE HUMAN DECI-
 SION MAKING ON EMPLOYMENT DECISIONS THAT IMPACT NATURAL PERSONS.  "AUTO-
 MATED  EMPLOYMENT  DECISION  TOOL" DOES NOT INCLUDE A TOOL THAT DOES NOT
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
              

                                                            LBD11940-14-4
 A. 9315--B                          2
 
 AUTOMATE, SUPPORT, ASSIST OR REPLACE DISCRETIONARY EMPLOYMENT  DECISION-
 MAKING  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 COMPILA-
 TION 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. "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.
   5. "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.
   6.  "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  THAT  CAN BE USED TO ESTABLISH INDIVIDUAL
 IDENTITY;
   (C) HEALTH 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,  SUBSCRIBER IDENTIFICATION NUMBER, OR
 OTHER UNIQUE IDENTIFIER USED TO IDENTIFY THE INDIVIDUAL; AND
   (D) 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;
 A. 9315--B                          3
 
   (V) INPUTS TO OR OUTPUTS GENERATED BY AN AUTOMATED EMPLOYMENT DECISION
 TOOL THAT ARE LINKED TO THE INDIVIDUAL; AND
   (VI)  DATA COLLECTED OR GENERATED ON WORKERS TO MITIGATE THE SPREAD OF
 INFECTIOUS DISEASES, INCLUDING COVID-19, OR TO COMPLY WITH PUBLIC HEALTH
 MEASURES.
   7. "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, AND WORKPLACE HEALTH AND SAFE-
 TY. FOR PERSONS CLASSIFIED AS INDEPENDENT CONTRACTORS OR FOR  CANDIDATES
 FOR  EMPLOYMENT,  THIS  MEANS THE EQUIVALENT OF THESE DECISIONS BASED ON
 THEIR CONTRACT WITH OR RELATIONSHIP TO THE EMPLOYER.
   8. "IMPACT ASSESSMENT" MEANS AN EVALUATION  BY  AN  IMPARTIAL  AUDITOR
 THAT COMPLIES WITH SECTION ONE THOUSAND ELEVEN OF THIS ARTICLE.
   9.  "IMPARTIAL  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.
   10.  "PROTECTED CLASS" MEANS A CLASS ENUMERATED IN SECTION TWO HUNDRED
 NINETY-SIX OF THE EXECUTIVE LAW.
   11. "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. AUTOMATED EMPLOYMENT DECISION TOOLS; IMPACT ASSESSMENTS. 1. IT
 SHALL  BE UNLAWFUL FOR AN EMPLOYER WITH ONE HUNDRED OR MORE EMPLOYEES 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:
   (A) 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;
   (B)  BE  CONDUCTED  BY  AN  IMPARTIAL PARTY WITH NO FINANCIAL OR LEGAL
 CONFLICTS OF INTEREST;
   (C) IDENTIFY AND DESCRIBE THE ATTRIBUTES AND MODELING TECHNIQUES  THAT
 THE TOOL USES TO PRODUCE OUTPUTS;
   (D)  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;
   (E)  CONSIDER AND DESCRIBE POTENTIAL SOURCES OF ADVERSE IMPACT AGAINST
 PROTECTED CLASSES THAT MAY ARISE AFTER THE TOOL IS DEPLOYED;
   (F) 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;
   (G) 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
   (H)  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.
 A. 9315--B                          4
 
   2. AN EMPLOYER SUBJECT TO THE PROVISIONS OF THIS SECTION SHALL CONDUCT
 OR COMMISSION SUBSEQUENT IMPACT ASSESSMENTS EACH YEAR THAT THE  TOOL  IS
 IN  USE  FOR EMPLOYMENT DECISIONS.   SUBSEQUENT IMPACT ASSESSMENTS SHALL
 COMPLY WITH THE REQUIREMENTS OF SUBDIVISION ONE  OF  THIS  SECTION,  AND
 SHALL ASSESS AND DESCRIBE ANY CHANGE IN THE VALIDITY OR DISPARATE IMPACT
 OF THE TOOL.
   3.  AN  EMPLOYER  OR  VENDOR SUBJECT TO THE PROVISIONS OF THIS SECTION
 SHALL RETAIN ALL DOCUMENTATION PERTAINING TO  THE  DESIGN,  DEVELOPMENT,
 USE,  AND  DATA  OF  AN  AUTOMATED  EMPLOYMENT DECISION TOOL THAT MAY BE
 NECESSARY TO CONDUCT AN IMPACT ASSESSMENT FOR A PERIOD OF THREE YEARS TO
 ENSURE COMPLIANCE WITH COMMISSIONER REQUESTS FOR DATA.
   4.  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.
   5. 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,
 AN EMPLOYER SHALL REFRAIN FROM USING THE TOOL UNTIL IT:
   (A) TAKES REASONABLE AND APPROPRIATE STEPS TO  REMEDY  THAT  DISPARATE
 IMPACT; AND
   (B)  WHERE  THE  EMPLOYER  BELIEVES THE IMPACT ASSESSMENT FINDING OF A
 DISPARATE IMPACT IS ERRONEOUS, OR THAT THE  STEPS  TAKEN  IN  ACCORDANCE
 WITH  PARAGRAPH (A) OF THIS SUBDIVISION SUFFICIENTLY ADDRESS THOSE FIND-
 INGS SUCH THAT THE TOOL MAY BE LAWFULLY USED  IN  ACCORDANCE  WITH  THIS
 ARTICLE, THE EMPLOYER SHALL SUBMIT TO THE COMMISSIONER 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.
   6.  IT SHALL BE UNLAWFUL FOR AN IMPARTIAL AUDITOR, VENDOR, OR EMPLOYER
 TO MANIPULATE, CONCEAL, OR MISREPRESENT THE RESULTS OF AN IMPACT ASSESS-
 MENT.
   7. 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.
   §  1012. AUTOMATED EMPLOYMENT DECISION TOOLS; NOTICE AND RESTRICTIONS.
 1. (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 BEFORE OR AT THE TIME AN EMPLOYMENT DECI-
 SION IS MADE:
   (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
 A. 9315--B                          5

 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; AND
   (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.
   (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; AND
   (III) POSTED ON THE EMPLOYER'S WEBSITE IN ENGLISH  AND  THE  TEN  MOST
 COMMONLY SPOKEN NON-ENGLISH LANGUAGES IN THE STATE.
   2.  (A)  NOTWITHSTANDING THE PROVISIONS OF SECTION ONE THOUSAND TEN OF
 THIS ARTICLE, AN EMPLOYER SHALL NOT 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; OR
   (II) IN A MANNER NOT CONSISTENT WITH THE SCOPE OF THE  IMPACT  ASSESS-
 MENT REQUIRED BY SECTION ONE THOUSAND TEN OF THIS ARTICLE.
   (B)  AN  EMPLOYER  SHALL  NOT  SOLELY RELY 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  SHALL  ESTABLISH MEANINGFUL HUMAN OVERSIGHT OF SUCH
 DECISIONS BASED IN WHOLE OR IN PART ON THE OUTPUT OF  AUTOMATED  EMPLOY-
 MENT  DECISION  TOOLS. SUCH MEANINGFUL HUMAN OVERSIGHT OF SUCH DECISIONS
 SHALL REQUIRE CONSIDERATION  OF    INFORMATION    OTHER  THAN  AUTOMATED
 EMPLOYMENT DECISION TOOL OUTPUTS, INCLUDING BUT NOT LIMITED TO: SUPERVI-
 SORY OR MANAGERIAL EVALUATIONS, PERSONNEL FILES, EMPLOYEE WORK PRODUCTS,
 OR PEER REVIEWS.
   (C)  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, ACCURACY, AND CORRECTION. 1.    (A)  AN  EMPLOYER
 SHALL ENSURE THAT ANY EMPLOYEE DATA THAT IS USED BY AN AUTOMATED EMPLOY-
 MENT  DECISION  TOOL  FOR  AN EMPLOYMENT DECISION IS ACCURATE AND, WHERE
 RELEVANT, KEPT UP TO DATE FOR A PERIOD OF THREE YEARS.
   (B) A CURRENT OR FORMER EMPLOYEE WHOSE DATA WAS USED BY  AN  AUTOMATED
 EMPLOYMENT  DECISION  TOOL  FOR  AN EMPLOYMENT DECISION HAS THE RIGHT TO
 REQUEST, AND THE EMPLOYER SHALL PROVIDE, A COPY OF  THE  EMPLOYEE'S  OWN
 DATA.
   (C)  SUCH REQUESTED RECORDS PURSUANT TO THIS SECTION SHALL BE PROVIDED
 AT NO COST TO THE CURRENT OR  FORMER  EMPLOYEE.  A  FORMER  EMPLOYEE  IS
 LIMITED TO ONE REQUEST PER YEAR PURSUANT TO THIS SUBDIVISION.
   (D)  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 FOURTEEN CALENDAR DAYS FROM THE
 DATE OF THE REQUEST.
   (E) AN EMPLOYER SHALL PROVIDE INFORMATION PURSUANT TO THIS SECTION  IN
 ENGLISH OR, IF APPLICABLE, IN THE LANGUAGE IDENTIFIED BY THE EMPLOYEE AS
 THE PRIMARY LANGUAGE OF SUCH EMPLOYEE.
   (F)  AN  EMPLOYER THAT DOES NOT MONITOR THIS DATA HAS NO OBLIGATION TO
 PROVIDE IT.
 A. 9315--B                          6
 
   2. (A) AN EMPLOYER THAT RECEIVES AN EMPLOYEE REQUEST TO CORRECT  INAC-
 CURATE DATA SHALL INVESTIGATE AND DETERMINE WHETHER SUCH DATA IS INACCU-
 RATE.
   (B)  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.
   (C)  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.
   § 1014. UNLAWFUL RETALIATION. FOR  PURPOSES  OF  THIS  ARTICLE,  THERE
 SHALL BE A REBUTTABLE PRESUMPTION OF UNLAWFUL RETALIATION IF AN EMPLOYER
 IN  ANY  MANNER  DISCRIMINATES,  RETALIATES, OR TAKES ANY ADVERSE ACTION
 AGAINST ANY EMPLOYEE WITHIN NINETY DAYS OF THE EMPLOYEE DOING EITHER  OF
 THE FOLLOWING:
   1.  INITIATING  THE  EMPLOYEE'S  FIRST  REQUEST IN A CALENDAR YEAR FOR
 INFORMATION PURSUANT TO SECTION ONE THOUSAND THIRTEEN OF THIS ARTICLE.
   2. MAKING A COMPLAINT RELATED TO ANY VIOLATION OF THIS ARTICLE, INCLU-
 SIVE, TO THE COMMISSIONER, THE DEPARTMENT, OTHER LOCAL OR STATE  GOVERN-
 MENTAL AGENCY, OR THE EMPLOYER.
   § 1015. VENDOR NOTICE. 1. ANY VENDOR WHO SELLS, DISTRIBUTES, OR OFFERS
 FOR USE TO AN EMPLOYER AN AUTOMATED EMPLOYMENT DECISION TOOL SHALL NOTI-
 FY  EMPLOYERS  THAT  USE  OF SUCH TOOL IS SUBJECT TO THE REQUIREMENTS OF
 THIS ARTICLE. SUCH NOTICE SHALL INCLUDE:
   (A) INFORMATION ABOUT THE REQUIREMENTS  OF  THE  EMPLOYER  UNDER  THIS
 ARTICLE  AND  THE EXEMPTION FROM CERTAIN REQUIREMENTS OR LIABILITY UNDER
 THIS ARTICLE ACCORDING TO THE EMPLOYER'S SIZE;
   (B) INFORMATION ABOUT THE PENALTIES FOR NON-COMPLIANCE WITH THIS ARTI-
 CLE AND LIABILITY IMPOSED ON THE EMPLOYER BY THIS ARTICLE;
   (C) A COPY OF OR DIRECTIONS ON HOW TO ACCESS ANY ASSESSMENTS OF DISPA-
 RATE IMPACT OR BIAS CONDUCTED BY THE VENDOR ON THE AUTOMATED  EMPLOYMENT
 DECISION TOOL; AND
   (D)  INFORMATION  ON  OR  DIRECTIONS ON HOW TO ACCESS MORE INFORMATION
 REGARDING THE EMPLOYER'S RESPONSIBILITY AND LIABILITY UNDER  THIS  ARTI-
 CLE.
   2. THE NOTICE REQUIRED BY THIS SECTION SHALL BE:
   (A) WRITTEN IN CLEAR AND PLAIN LANGUAGE;
   (B) PROVIDED BEFORE AN EMPLOYER MAY BEGIN USE OF THE AUTOMATED EMPLOY-
 MENT DECISION TOOL; AND
   (C)  OTHERWISE  PRESENTED  IN A MANNER THAT ENSURES THE NOTICE CLEARLY
 AND EFFECTIVELY COMMUNICATES THE REQUIRED INFORMATION TO EMPLOYERS.
   § 1016. ENFORCEMENT. 1. THE COMMISSIONER SHALL ADOPT RULES  AND  REGU-
 LATIONS  IMPLEMENTING  THE  PROVISIONS OF THIS ARTICLE. THE COMMISSIONER
 SHALL BE AUTHORIZED TO ENFORCE THE PROVISIONS OF  THIS  ARTICLE  AND  TO
 ASSESS CIVIL PENALTIES  AS PROVIDED  IN SECTIONS TWO HUNDRED FIFTEEN AND
 TWO  HUNDRED  EIGHTEEN  OF  THIS CHAPTER. THE CIVIL  PENALTIES  PROVIDED
 FOR  IN  THIS SECTION SHALL BE IN ADDITION TO AND MAY BE IMPOSED CONCUR-
 RENTLY WITH ANY OTHER REMEDY OR PENALTY PROVIDED FOR IN THIS CHAPTER.
 A. 9315--B                          7
 
   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 INJUNCTIVE,  DECLARATORY,  OR  SUCH
 OTHER RELIEF AS MAY BE APPROPRIATE, ORDERING PAYMENT OF CIVIL PENALTIES,
 AND RECOVERING DAMAGES AND LIQUIDATED DAMAGES.
   §  2.  The  opening  paragraph  of subdivision 1 of section 218 of the
 labor law, as amended by chapter 43 of the laws of 2023, is  amended  to
 read as follows:
   If  the  commissioner  determines  that  an  employer  has  violated a
 provision of article six (payment of wages), article  nineteen  (minimum
 wage  act),  article  nineteen-A  (minimum wage standards and protective
 labor practices for farm workers), article twenty-one-A (warehouse work-
 er protection act), ARTICLE THIRTY-SIX (BOUNDARIES ON  TECHNOLOGY  ACT),
 section  two hundred twelve-a, section two hundred twelve-b, section one
 hundred sixty-one (day of rest) or section one hundred  sixty-two  (meal
 periods)  of  this  chapter,  or a rule or regulation promulgated there-
 under, the commissioner shall issue to the employer an  order  directing
 compliance  therewith,  which  shall describe particularly the nature of
 the alleged violation. A copy of such order shall  be  provided  to  any
 employee  who has filed a complaint and any authorized representative of
 [him or her] SUCH EMPLOYEE. In addition to directing payment  of  wages,
 benefits  or wage supplements found to be due, and liquidated damages in
 the amount of one hundred percent of unpaid wages, such order, if issued
 to an employer who previously has  been  found  in  violation  of  those
 provisions,  rules  or regulations, or to an employer whose violation is
 willful or egregious, shall direct payment to  the  commissioner  of  an
 additional  sum as a civil penalty in an amount not to exceed double the
 total amount of wages, benefits, or wage supplements found to be due. In
 no case shall the order direct payment of an amount less than the  total
 wages, benefits or wage supplements found by the commissioner to be due,
 plus  the  liquidated  damages  in  the amount of one hundred percent of
 unpaid wages, the appropriate civil penalty, and interest at the rate of
 interest then in effect, as prescribed by the superintendent  of  finan-
 cial  services  pursuant  to  section  fourteen-a of the banking law per
 annum from the date of the underpayment to  the  date  of  the  payment.
 Where the violation is for a reason other than the employer's failure to
 pay wages, benefits or wage supplements found to be due, the order shall
 direct  payment  to the commissioner of a civil penalty in an amount not
 to exceed one thousand dollars  for  a  first  violation,  two  thousand
 dollars  for a second violation or three thousand dollars for a third or
 subsequent violation. In  assessing  the  amount  of  the  penalty,  the
 commissioner  shall give due consideration to the size of the employer's
 business, the good faith basis of  the  employer  to  believe  that  its
 conduct  was  in  compliance with the law, the gravity of the violation,
 the history of previous violations and, in the case of  wages,  benefits
 or  supplements  violations, the failure to comply with recordkeeping or
 other non-wage requirements.
   § 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.