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Bill No.: Summary Actions Committee&nbspVotes Floor&nbspVotes Memo Text LFIN Chamber&nbspVideo/Transcript S10147 Summary: BILL NO S10147 &nbsp SAME AS SAME AS A03779-A

&nbsp SPONSOR GONZALEZ &nbsp COSPNSR &nbsp MLTSPNSR &nbsp Add Art 35-A §§1010 - 1016, amd §218, Lab L &nbsp Restricts the use by an employer or an employment agency of electronic monitoring or an automated employment decision tool to screen a candidate or employee for an employment decision unless such tool has been the subject of an impact assessment within the last year; requires notice to employment candidates of the use of such tools; provides remedies for violations.

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STATE OF NEW YORK ________________________________________________________________________

10147

IN SENATE

April 30, 2026 ___________

Introduced by Sen. GONZALEZ -- read twice and ordered printed, and when printed to be committed to the Committee on Labor

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:

1 Section 1. The labor law is amended by adding a new article 35-A to 2 read as follows: 3 ARTICLE 35-A 4 BOUNDARIES ON TECHNOLOGY ACT 5 Section 1010. Definitions. 6 1011. Automated employment decision tools; impact assessments. 7 1012. Automated employment decision tools; notice and 8 restrictions. 9 1013. Data access, accuracy, and correction. 10 1014. Unlawful retaliation. 11 1015. Vendor notice. 12 1016. Enforcement. 13 § 1010. Definitions. For the purposes of this section, the following 14 terms have the following meanings: 15 1. "Aggregated employee data" means employee data that an employer has 16 combined, or collected together, in a summary or other form so that the 17 employee data cannot be identified with any specific employee. 18 2. "Automated employment decision tool" means the same as defined in 19 section four hundred one of the state technology law. 20 3. "Candidate" means any natural person or their authorized represen- 21 tative seeking employment through an application, or who is screened or 22 evaluated for recruitment, for a position of employment by a business 23 operating in the state. 24 4. "Employer" means any person who directly or indirectly, or through 25 an agent or any other person, employs or exercises control over the 26 wages, benefits, other compensation, hours, working conditions, access 27 to work or job opportunities, or other terms or conditions of employ- 28 ment, of any worker. Such term shall not include the state, any poli-

EXPLANATION--Matter in italics (underscored) is new; matter in brackets [ ] is old law to be omitted. LBD00754-06-6

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1 tical subdivision of the state, a public authority, or any other govern- 2 mental agency or instrumentality. 3 5. "Employee" means any natural person or their authorized represen- 4 tative acting for, employed by, or a person classified as an independent 5 contractor providing service to, or through, an employer operating in 6 the state. An employee shall be deemed to be operating in the state for 7 purposes of deeming an employee to be covered by this article if the 8 employee works at least part time at a location in the state, or if 9 fully remote, the employee is associated with an office in the state or 10 supervised by a person who works at least part time at a location in the 11 state. Employee can mean a former employee. 12 6. "Employee data" means any information that identifies, relates to, 13 describes, is reasonably capable of being associated with, or could 14 reasonably be linked, directly or indirectly, with a particular employ- 15 ee, regardless of how the information is collected, inferred, or 16 obtained. Data includes, but is not limited to, the following: 17 (a) personal identity information, including the individual's name, 18 contact information, government-issued identification number, financial 19 information, criminal background, or employment history; 20 (b) biometric information that can be used to establish individual 21 identity; 22 (c) health information, including the individual's medical history, 23 physical or mental condition, diet or physical activity patterns, heart 24 rate, medical treatment or diagnosis by a health care professional, 25 health insurance policy number, subscriber identification number, or 26 other unique identifier used to identify the individual; and 27 (d) data related to workplace activities, including the following: 28 (i) human resources information, including the contents of an individ- 29 ual's personnel file or performance evaluations; 30 (ii) work process information, such as data relating to an individual 31 employee's performance, including but not limited to quantities of tasks 32 performed, quantities of items or materials handled or produced, rates 33 or speeds of tasks performed, measurements or metrics of employee 34 performance in relation to a quota, and time categorized as performing 35 tasks or not performing tasks; 36 (iii) data that captures workplace communications and interactions, 37 including emails, texts, internal message boards, and customer inter- 38 action and ratings; 39 (iv) device usage and data, including calls placed or geolocation 40 information; 41 (v) inputs to or outputs generated by an automated employment decision 42 tool that are linked to the individual; and 43 (vi) data collected or generated on workers to mitigate the spread of 44 infectious diseases, including COVID-19, or to comply with public health 45 measures. 46 7. "Employment decision" means any decision made by the employer that 47 affects wages, benefits, other compensation, hours, work schedule, 48 performance evaluation, hiring, selecting for recruitment, discipline, 49 promotion, termination, job content, assignment of work, access to work 50 opportunities, productivity requirements, and workplace health and safe- 51 ty. For persons classified as independent contractors or for candidates 52 for employment, this means the equivalent of these decisions based on 53 their contract with or relationship to the employer. 54 8. "Impact assessment" means an evaluation by an impartial auditor 55 that complies with section one thousand eleven of this article.

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1 9. "Impartial auditor" means a person or entity that conducts an 2 impact assessment of an automated employment decision tool in a manner 3 that exercises objective and impartial judgment on all issues within the 4 scope of such evaluation or assessment. 5 10. "Protected class" means a class enumerated in section two hundred 6 ninety-six of the executive law. 7 11. "Vendor" means any person or entity who sells, distributes, or 8 develops for sale an automated employment decision tool to be used in an 9 employment decision made by an employer in the state. "Vendor" includes 10 any of the vendor's agents, contractors, or subcontractors. 11 § 1011. Automated employment decision tools; impact assessments. 1. It 12 shall be unlawful for an employer with one hundred or more employees to 13 use an automated employment decision tool for an employment decision 14 unless such tool has been the subject of an impact assessment. Impact 15 assessments for automated employment decision tools must: 16 (a) be conducted no more than one year prior to the use of such tool, 17 or where the tool was in use by the employer before the effective date 18 of this article, within six months of the effective date of this arti- 19 cle; 20 (b) be conducted by an impartial party with no financial or legal 21 conflicts of interest; 22 (c) identify and describe the attributes and modeling techniques that 23 the tool uses to produce outputs; 24 (d) consider, identify, and describe any outputs produced by the tool 25 that may result in a disparate impact on persons belonging to a 26 protected class, and what actions may be taken by the employer or vendor 27 of the tool to reduce or remedy that disparate impact; 28 (e) consider and describe potential sources of adverse impact against 29 protected classes that may arise after the tool is deployed; 30 (f) identify and describe any other assessment of risks of discrimi- 31 nation or a disparate impact of the tool on members of a protected class 32 that arise over the course of the impact assessment, and what actions 33 may be taken to reduce or remedy that risk; 34 (g) for any finding of a disparate impact or limit on accessibility, 35 evaluate whether the data set, attribute, or feature of the tool at 36 issue is the least discriminatory method of assessing a candidate's 37 performance or ability to perform job functions; and 38 (h) be submitted in its entirety or an accessible summary form to the 39 department for inclusion in a public registry of such impact assessments 40 within sixty days of completion, and distributed to employees who may be 41 subject to the tool. 42 2. An employer subject to the provisions of this section shall conduct 43 or commission subsequent impact assessments each year that the tool is 44 in use for employment decisions. Subsequent impact assessments shall 45 comply with the requirements of subdivision one of this section, and 46 shall assess and describe any change in the validity or disparate impact 47 of the tool. 48 3. An employer or vendor subject to the provisions of this section 49 shall retain all documentation pertaining to the design, development, 50 use, and data of an automated employment decision tool that may be 51 necessary to conduct an impact assessment for a period of three years to 52 ensure compliance with commissioner requests for data. 53 4. If an initial or subsequent impact assessment requires the 54 collection of employee data to assess a tool's disparate impact on 55 employees, such data shall be collected, processed, stored, and retained 56 in such a manner as to protect the privacy of employees, and shall

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1 comply with any data retention and security requirements specified by 2 the commissioner. Employee data provided to auditors for the purpose of 3 an impact assessment shall not be shared with the employer, nor shall it 4 be shared with any person, business entity, or other organization unless 5 strictly necessary for the completion of the impact assessment. 6 5. If an initial or subsequent impact assessment concludes that a data 7 set, feature, or application of the automated employment decision tool 8 results in a disparate impact on persons belonging to a protected class, 9 an employer shall refrain from using the tool until it: 10 (a) takes reasonable and appropriate steps to remedy that disparate 11 impact; and 12 (b) where the employer believes the impact assessment finding of a 13 disparate impact is erroneous, or that the steps taken in accordance 14 with paragraph (a) of this subdivision sufficiently address those find- 15 ings such that the tool may be lawfully used in accordance with this 16 article, the employer shall submit to the commissioner how the data set, 17 feature, or application of the tool is the least discriminatory method 18 of assessing an employee's performance or ability to complete essential 19 functions of a position. 20 6. It shall be unlawful for an impartial auditor, vendor, or employer 21 to manipulate, conceal, or misrepresent the results of an impact assess- 22 ment. 23 7. Nothing in this article shall be construed as prohibiting an 24 employer from implementing a lawful affirmative action plan or engaging 25 in otherwise lawful efforts to reduce or eliminate bias in employment 26 decisions. 27 § 1012. Automated employment decision tools; notice and restrictions. 28 1. (a) Any employer that uses an automated employment decision tool to 29 assess or evaluate an employee or candidate shall notify employees and 30 candidates subject to the tool before or at the time an employment deci- 31 sion is made: 32 (i) that an automated employment decision tool will be used in 33 connection with the assessment or evaluation of such employee or candi- 34 date; 35 (ii) the job qualifications and characteristics that such automated 36 employment decision tool will assess, what employee or candidate data or 37 attributes the tool will use to conduct that assessment, and what kind 38 of outputs the tool will produce as an evaluation of such employee or 39 candidate; 40 (iii) what employee or candidate data is collected for the automated 41 employment decision tool, the source of such data and the employer's 42 data retention policy. Information pursuant to this section shall not 43 be disclosed where such disclosure would violate local, state, or feder- 44 al law, or interfere with a law enforcement investigation; and 45 (iv) for employers subject to the provisions of section one thousand 46 eleven of this article, the results of the most recent impact assessment 47 of the automated employment decision tool, including any findings of a 48 disparate impact and associated response from the employer, or informa- 49 tion about how to access that information if publicly available. 50 (b) The notice required by this subdivision shall be: 51 (i) written in clear and plain language; 52 (ii) included in each job posting or advertisement for each position 53 for which the automated employment decision tool will be used; and 54 (iii) posted on the employer's website in English and the ten most 55 commonly spoken non-English languages in the state.

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1 2. (a) Notwithstanding the provisions of section one thousand ten of 2 this article, an employer shall not use an automated employment decision 3 tool: 4 (i) in such a manner that results in a violation of labor, employment, 5 civil rights or human rights law or any other law of this state; or 6 (ii) in a manner not consistent with the scope of the impact assess- 7 ment required by section one thousand ten of this article. 8 (b) An employer shall not solely rely on output from an automated 9 employment decision tool when making hiring, promotion, termination, 10 disciplinary, or compensation decisions. For an employer to satisfy the 11 requirements of this paragraph: 12 (i) An employer shall establish meaningful human oversight of such 13 decisions based in whole or in part on the output of automated employ- 14 ment decision tools. Such meaningful human oversight of such decisions 15 shall require consideration of information other than automated 16 employment decision tool outputs, including but not limited to: supervi- 17 sory or managerial evaluations, personnel files, employee work products, 18 or peer reviews. 19 (c) An employer shall not require employees or candidates to consent 20 to the use of an automated employment decision tool in an employment 21 decision in order to be considered for an employment decision, nor shall 22 an employer discipline or disadvantage an employee or candidate for 23 employment as a result of their request for accommodation. 24 § 1013. Data access, accuracy, and correction. 1. (a) An employer 25 shall ensure that any employee data that is used by an automated employ- 26 ment decision tool for an employment decision is accurate and, where 27 relevant, kept up to date for a period of three years. 28 (b) A current or former employee whose data was used by an automated 29 employment decision tool for an employment decision has the right to 30 request, and the employer shall provide, a copy of the employee's own 31 data. 32 (c) Such requested records pursuant to this section shall be provided 33 at no cost to the current or former employee. A former employee is 34 limited to one request per year pursuant to this subdivision. 35 (d) An employer that receives a written or oral request for informa- 36 tion pursuant to this section shall comply with the request as 37 soon as practicable, but no later than fourteen calendar days from the 38 date of the request. 39 (e) An employer shall provide information pursuant to this section in 40 English or, if applicable, in the language identified by the employee as 41 the primary language of such employee. 42 (f) An employer that does not monitor this data has no obligation to 43 provide it. 44 2. (a) An employer that receives an employee request to correct inac- 45 curate data shall investigate and determine whether such data is inaccu- 46 rate. 47 (b) If an employer, upon investigation, determines that such data is 48 inaccurate, the employer shall: 49 (i) promptly correct the inaccurate data and inform the employee of 50 the employer's decision and action; 51 (ii) review and adjust, as appropriate, any employment decisions that 52 were based on the inaccurate data and inform the employee of the adjust- 53 ment; and 54 (iii) inform any third parties with which the employer shared the 55 inaccurate data, or from which the employer received the inaccurate

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1 data, and direct them to correct it, and provide the employee with a 2 copy of such action. 3 (c) If an employer, upon investigation, determines that the data is 4 accurate, the employer shall inform the employee of the decision not to 5 amend the data, the steps taken to verify the accuracy of the data, and 6 any evidence supporting the decision not to amend the data. 7 § 1014. Unlawful retaliation. For purposes of this article, there 8 shall be a rebuttable presumption of unlawful retaliation if an employer 9 in any manner discriminates, retaliates, or takes any adverse action 10 against any employee within ninety days of the employee doing either of 11 the following: 12 1. Initiating the employee's first request in a calendar year for 13 information pursuant to section one thousand thirteen of this article. 14 2. Making a complaint related to any violation of this article, inclu- 15 sive, to the commissioner, the department, other local or state govern- 16 mental agency, or the employer. 17 § 1015. Vendor notice. 1. Any vendor who sells, distributes, or offers 18 for use to an employer an automated employment decision tool shall noti- 19 fy employers that use of such tool is subject to the requirements of 20 this article. Such notice shall include: 21 (a) information about the requirements of the employer under this 22 article and the exemption from certain requirements or liability under 23 this article according to the employer's size; 24 (b) information about the penalties for non-compliance with this arti- 25 cle and liability imposed on the employer by this article; 26 (c) a copy of or directions on how to access any assessments of dispa- 27 rate impact or bias conducted by the vendor on the automated employment 28 decision tool; and 29 (d) information on or directions on how to access more information 30 regarding the employer's responsibility and liability under this arti- 31 cle. 32 2. The notice required by this section shall be: 33 (a) written in clear and plain language; 34 (b) provided before an employer may begin use of the automated employ- 35 ment decision tool; and 36 (c) otherwise presented in a manner that ensures the notice clearly 37 and effectively communicates the required information to employers. 38 § 1016. Enforcement. 1. The commissioner shall adopt rules and regu- 39 lations implementing the provisions of this article. The commissioner 40 shall be authorized to enforce the provisions of this article and to 41 assess civil penalties as provided in sections two hundred fifteen and 42 two hundred eighteen of this chapter. The civil penalties provided 43 for in this section shall be in addition to and may be imposed concur- 44 rently with any other remedy or penalty provided for in this chapter. 45 2. The attorney general may initiate in a court of competent jurisdic- 46 tion action that may be appropriate or necessary for correction of any 47 violation of this article, including mandating compliance with the 48 provisions of this article, securing injunctive, declaratory, or such 49 other relief as may be appropriate, ordering payment of civil penalties, 50 and recovering damages and liquidated damages. 51 § 2. The opening paragraph of subdivision 1 of section 218 of the 52 labor law, as amended by chapter 43 of the laws of 2023, is amended to 53 read as follows: 54 If the commissioner determines that an employer has violated a 55 provision of article six (payment of wages), article nineteen (minimum 56 wage act), article nineteen-A (minimum wage standards and protective

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1 labor practices for farm workers), article twenty-one-A (warehouse work- 2 er protection act), article thirty-five-A (boundaries on technology 3 act), section two hundred twelve-a, section two hundred twelve-b, 4 section one hundred sixty-one (day of rest) or section one hundred 5 sixty-two (meal periods) of this chapter, or a rule or regulation 6 promulgated thereunder, the commissioner shall issue to the employer an 7 order directing compliance therewith, which shall describe particularly 8 the nature of the alleged violation. A copy of such order shall be 9 provided to any employee who has filed a complaint and any authorized 10 representative of [ him or her ] such employee . In addition to directing 11 payment of wages, benefits or wage supplements found to be due, and 12 liquidated damages in the amount of one hundred percent of unpaid wages, 13 such order, if issued to an employer who previously has been found in 14 violation of those provisions, rules or regulations, or to an employer 15 whose violation is willful or egregious, shall direct payment to the 16 commissioner of an additional sum as a civil penalty in an amount not to 17 exceed double the total amount of wages, benefits, or wage supplements 18 found to be due. In no case shall the order direct payment of an amount 19 less than the total wages, benefits or wage supplements found by the 20 commissioner to be due, plus the liquidated damages in the amount of one 21 hundred percent of unpaid wages, the appropriate civil penalty, and 22 interest at the rate of interest then in effect, as prescribed by the 23 superintendent of financial services pursuant to section fourteen-a of 24 the banking law per annum from the date of the underpayment to the date 25 of the payment. Where the violation is for a reason other than the 26 employer's failure to pay wages, benefits or wage supplements found to 27 be due, the order shall direct payment to the commissioner of a civil 28 penalty in an amount not to exceed one thousand dollars for a first 29 violation, two thousand dollars for a second violation or three thousand 30 dollars for a third or subsequent violation. In assessing the amount of 31 the penalty, the commissioner shall give due consideration to the size 32 of the employer's business, the good faith basis of the employer to 33 believe that its conduct was in compliance with the law, the gravity of 34 the violation, the history of previous violations and, in the case of 35 wages, benefits or supplements violations, the failure to comply with 36 recordkeeping or other non-wage requirements. 37 § 3. This act shall take effect on the one hundred eightieth day after 38 it shall have become a law. Effective immediately, the addition, amend- 39 ment and/or repeal of any rule or regulation necessary for the implemen- 40 tation of this act on its effective date are authorized to be made and 41 completed on or before such effective date.

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