Update Applicable to:
All New York employers, multi-state employers that have workers in the State of New York, including employers of labor contractors.
Under a recently introduced bill, employers across New York State could face new restrictions on the electronic surveillance of workers and the growing use of automated decision-making and artificial intelligence (AI) technology to make employment decisions similar to the ones of New York City Rules.
This Bill was introduced on August 4, 2023.
What are the details?
The Bill seeks to address privacy concerns with electronic surveillance, or so-called “bossware,” and concerns that automated decision-making tools result in discrimination against individuals with disabilities or against other members of protected groups.
Employers have increasingly come to rely on electronic monitoring to increase productivity. Automated employment decision tools (AEDTs) are being used to increase efficiency and aid in a variety of ways, including screening job applications and assessing job candidates or employees for hiring or promotions.
The bill would make it unlawful for employers or employment agencies to use an electronic monitoring tool “to surveil employees” unless the use, is “strictly necessary to accomplish the allowable purpose,” is “the least invasive means to the employee that could reasonably be used accomplish the allowable purpose,” and is “limited to the smallest number of workers and collects the least amount of data necessary” according to SHRM.
Employers that intend to use electronic monitoring would be required to notify employees and such notification would have to provide certain information. These notice provisions would significantly expand the notice requirements imposed by Section 52-c of the NY Civil Rights Law.
It would be prohibited for employers from using electronic monitoring tools “to monitor employees who are off-duty and not performing work-related tasks,” location-tracking applications would be required to be disabled outside of the activities and times necessary to perform jobs, and from relying solely on an output from an AEDT “when making hiring, promotion, termination, disciplinary, or compensation decisions.”, according to JDSUPRA.
Under the bill, each day that an electronic monitoring tool or AEDT is used unlawfully would give rise to a separate violation. A failure to provide the required notice to job candidates and employees would constitute a separate violation.
For more information, please see the links below:
Proposed Bill (S) 07623,
NY Senate: Article 1
What do employers need to do?
The newly proposed bill would further add new electronic monitoring restrictions. Employers should visit the above bill link to track the legislation and see if the bill is enacted into law. Employers are recommended to seek legal counsel from an employment attorney to review policies and procedures in order to ensure compliance, should the bill become law.
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