Prohibits an employer from requesting or requiring that an employee or applicant for employment disclose any user name, password, or other means for accessing a personal account or service through specified electronic communications devices.
NEW YORK STATE ASSEMBLY MEMORANDUM IN SUPPORT OF LEGISLATION submitted in accordance with Assembly Rule III, Sec 1(f)
BILL NUMBER: A836
SPONSOR: Dinowitz (MS) TITLE OF BILL:
An act to amend the labor law, in relation to prohibiting an employer
from requesting or requiring that an employee or applicant disclose any
user name, password, or other means for accessing a personal account
through specified electronic communications devices
PURPOSE:
This bill would prohibit employers from requesting or requiring user
name and login information including passwords as a condition of hiring,
employment status, for use in disciplinary actions.
SUMMARY OF PROVISIONS:
Section one of the bill adds § 201-i to the labor law to prohibit
employers from requesting or requiring access to personal electronic
communication accounts of prospective or current employees. This section
also allows for specific exemptions to the law when employers would be
allowed to request the information and exempts law enforcement, fire
departments, and the department of corrections and community super-
vision.
Section two of the bill provides the effective date.
JUSTIFICATION:
Employers are beginning to use various types of new tools in decisions
dealing with the hiring and disciplinary actions regarding prospective
and current employees. Recently, there have been reports of employers
demanding login information, including username and password information
to popular social media websites such as Facebook, Twitter as well as
login information to email accounts and other extremely personal
accounts. This information is being used as a condition of hiring, as
well as promotions, lateral movement within companies and in matters
relating to disciplinary action including, but not limited to, firing of
individuals.
This type of request can lead to issues of unfair and discriminatory
hiring and admissions practices and constitutes a serious invasion of
privacy on the behalf of the employer. Employees have the right to make
this information either public or private through the websites and they
should have every right to maintain this privacy when it comes their
workplace or during an interview or admissions process.
In these economic times many people do not have the option to walk away
from a job and are forced to submit to this request for fear they will
not be hired otherwise. This bill would remedy this issue and leave
consumers with their right to privacy and reduce the risk of unfair and
discriminatory hiring.
PRIOR LEGISLATIVE HISTORY:
2022: A.1861-C - Passed Assembly
2021: A.1861-C - Labor
2019-20: A.2479-A - Passed Assembly / S.5544-A - Labor
2017-18: A.5485 - Third Reading Calendar / S.1573A - Labor
2015-16: A.4388 - Third Reading Calendar/ S,6871- Labor
2013-14: A.443-D - Passed Assembly / S.2434-D -Third Reading Cal.
2011-12: A.9654 - Passed Assembly / S.6831 - Labor
FISCAL IMPLICATIONS:
None to the State.
EFFECTIVE DATE:
This act shall take effect on the 180th day after it shall have become
law.
STATE OF NEW YORK
________________________________________________________________________
836
2023-2024 Regular Sessions
IN ASSEMBLY
January 11, 2023
___________
Introduced by M. of A. DINOWITZ, L. ROSENTHAL, FAHY, COLTON, WEPRIN,
REYES, CRUZ, LUNSFORD, DICKENS, JACOBSON -- Multi-Sponsored by -- M.
of A. COOK, HYNDMAN -- read once and referred to the Committee on
Labor
AN ACT to amend the labor law, in relation to prohibiting an employer
from requesting or requiring that an employee or applicant disclose
any user name, password, or other means for accessing a personal
account through specified electronic communications devices
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. The labor law is amended by adding a new section 201-i to
2 read as follows:
3 § 201-i. Request for access to personal accounts prohibited. 1. For
4 purposes of this section, the following words shall have the following
5 meanings:
6 (a) "Applicant" means an applicant for employment.
7 (b) "Electronic communications device" means any device that uses
8 electronic signals to create, transmit, and receive information, includ-
9 ing, but not limited to computers, telephones, personal digital assist-
10 ants and other similar devices.
11 (c) "Employer" means (i) a person or entity engaged in a business,
12 industry, profession, trade or other enterprise in the state; (ii) the
13 state of New York; (iii) a county, city, town, village or any other
14 political subdivision or civil division of the state; (iv) a school
15 district or any government entity operating a public school, college, or
16 university; (v) a public improvement or special district; (vi) a public
17 authority, commission or public benefit corporation; or (vii) any other
18 public corporation, agency, instrumentality or unit of government which
19 exercises governmental power under the laws of the state; and (viii)
20 shall include an agent, representative or designee of the employer.
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD00726-01-3
A. 836 2
1 (d) "Personal account" means an account or profile on an electronic
2 medium where users may create, share, and view user-generated content,
3 including uploading or downloading videos or still photographs, blogs,
4 video blogs, podcasts, instant messages, or internet website profiles or
5 locations that is used by an employee or an applicant exclusively for
6 personal purposes.
7 2. (a) Except as provided in paragraph (b) of this subdivision, it
8 shall be unlawful for any employer to request, require or coerce any
9 employee or applicant for employment to:
10 (i) disclose any user name and password, password, or other authenti-
11 cation information for accessing a personal account through an electron-
12 ic communications device;
13 (ii) access the employee's or applicant's personal account in the
14 presence of the employer; or
15 (iii) reproduce in any manner photographs, video, or other information
16 contained within a personal account obtained by the means prohibited in
17 this paragraph.
18 (b) An employer may require an employee to disclose any user name,
19 password or other means for accessing nonpersonal accounts that provide
20 access to the employer's internal computer or information systems.
21 (c) For the purposes of this section, "access" shall not include an
22 employee or applicant voluntarily adding an employer, agent of the
23 employer, or employment agency to their list of contacts associated with
24 a personal internet account.
25 3. An employer may not:
26 (a) Discharge, discipline, or otherwise penalize or threaten to
27 discharge, discipline, or otherwise penalize an employee for an employ-
28 ee's refusal to disclose any information specified in paragraph (a) of
29 subdivision two of this section; or
30 (b) Fail or refuse to hire any applicant as a result of the appli-
31 cant's refusal to disclose any information specified in paragraph (a) of
32 subdivision two of this section.
33 4. It shall be an affirmative defense to an action under this section
34 that the employer acted to comply with requirements of a federal, state
35 or local law.
36 5. (a) Nothing in this section shall prohibit an employer from:
37 (i) requesting or requiring an employee to disclose access information
38 to an account provided by the employer where such account is used for
39 business purposes and the employee was provided prior notice of the
40 employer's right to request or require such access information;
41 (ii) requesting or requiring an employee to disclose access informa-
42 tion to an account known to an employer to be used for business
43 purposes;
44 (iii) accessing an electronic communications device paid for in whole
45 or in part by the employer where the provision of or payment for such
46 electronic communications device was conditioned on the employer's right
47 to access such device and the employee was provided prior notice of and
48 explicitly agreed to such conditions. However, nothing in this subpara-
49 graph shall permit an employer to access any personal accounts on such
50 device;
51 (iv) complying with a court order in obtaining or providing informa-
52 tion from, or access to, an employee's accounts as such court order may
53 require;
54 (v) restricting or prohibiting an employee's access to certain
55 websites while using an employer's network or while using an electronic
56 communications device paid for in whole or part by the employer where
A. 836 3
1 the provision of or payment for such electronic communications device
2 was conditioned on the employer's right to restrict such access and the
3 employee was provided prior notice of and explicitly agreed to such
4 conditions.
5 (b) This section does not prohibit or restrict an employer from
6 complying with a duty to screen employees or applicants prior to hiring
7 or to monitor or retain employee communications that is established
8 under federal law or by a self regulatory organization, as defined in
9 section 3(a)(26) of the securities and exchange act of 1934, 15 USC
10 §78c(a)(26).
11 (c) This section does not prohibit or restrict an employer from view-
12 ing, accessing, or utilizing information about an employee or applicant
13 that can be obtained without any required access information, that is
14 available in the public domain, or for the purposes of obtaining reports
15 of misconduct or investigating misconduct, photographs, video, messages,
16 or other information that is voluntarily shared by an employee, client,
17 or other third party that the employee subject to such report or inves-
18 tigation has voluntarily given access to contained within such employ-
19 ee's personal account.
20 6. The provisions of this section shall not apply to any law enforce-
21 ment agency, a fire department or a department of corrections and commu-
22 nity supervision.
23 § 2. This act shall take effect on the one hundred eightieth day after
24 it shall have become a law.
