S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                 2034--A

                       2013-2014 Regular Sessions

                          I N  A S S E M B L Y

                               (PREFILED)

                             January 9, 2013
                               ___________

Introduced  by  M. of A. STEVENSON, DINOWITZ, MILLER, RODRIGUEZ, COLTON,
  CRESPO -- Multi-Sponsored by -- M.  of  A.  CERETTO,  CROUCH,  GIBSON,
  HIKIND,  JAFFEE,  MILLMAN,  WRIGHT  --  read  once and referred to the
  Committee on Consumer Affairs and Protection -- committee  discharged,
  bill  amended,  ordered  reprinted  as amended and recommitted to said
  committee

AN ACT to amend the general business law and the labor law, in  relation
  to the use of credit history for employment purposes

  THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section 1. Short title. This act shall be known and may  be  cited  as
the "credit privacy in employment act".
  S  2.  Paragraph  3 of subdivision (a) of section 380-b of the general
business law, as amended by chapter 797 of the laws of 1984, is  amended
to read as follows:
  (3)  To  a  person  whom  it  has reason to believe intends to use the
information (i) in connection with a credit  transaction  involving  the
consumer  on  whom  the information is to be furnished and involving the
extension of credit to, or review or collection of an  account  of,  the
consumer,  or (ii) for employment purposes, SUBJECT TO THE PROVISIONS OF
SECTION THREE HUNDRED EIGHTY-U OF THIS ARTICLE or  (iii)  in  connection
with  the  underwriting  of insurance involving the consumer, or (iv) in
connection with a determination of  the  consumer's  eligibility  for  a
license  or  other  benefit  granted  by  a governmental instrumentality
required by law to consider an applicant's financial  responsibility  or
status,  or  (v)  to  a person in connection with a business transaction
involving the consumer where the user has a legitimate business need for
such information, or (vi) in connection with the rental or  lease  of  a
residence.

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD02797-02-3
              

A. 2034--A                          2

  S  3. Section 380-m of the general business law, as amended by chapter
279 of the laws of 2008, is amended to read as follows:
  S  380-m.  Civil  liability  for negligent noncompliance. Any consumer
reporting agency or user of information who or  which  is  negligent  in
failing to comply with any requirement imposed under this article, other
than  a  violation  of  section  three hundred eighty-t OR THREE HUNDRED
EIGHTY-U of this article, with respect to any consumer is liable to that
consumer in an amount equal to the sum of:
  (a) Any actual damages sustained by the consumer as a  result  of  the
failure;
  (b)  In  the  case  of  any successful action to enforce any liability
under this section, the costs of the  action  together  with  reasonable
attorney's fees as determined by the court.
  S 4. Section 380-u of the general business law, as relettered by chap-
ter  63  of  the  laws  of  2006,  is renumbered section 380-v and a new
section 380-u is added to read as follows:
  S 380-U. USE OF CREDIT  HISTORY  FOR  EMPLOYMENT  PURPOSES.    (A)  NO
EMPLOYER,  EMPLOYMENT  AGENCY,  OR LICENSING AGENCY, OR AGENT, REPRESEN-
TATIVE OR DESIGNEE THEREOF, SHALL:
  (1) USE INFORMATION IN THE  CREDIT  HISTORY  OF  A  JOB  APPLICANT  OR
EMPLOYEE  IN  CONNECTION WITH OR AS A CRITERION FOR EMPLOYMENT DECISIONS
RELATED TO HIRING, TERMINATION, PROMOTION, DEMOTION, DISCIPLINE, COMPEN-
SATION, OR THE TERMS, CONDITIONS OR PRIVILEGES OF EMPLOYMENT; OR
  (2) REQUEST THE JOB APPLICANT'S OR EMPLOYEE'S CREDIT HISTORY FOR  SUCH
PURPOSE.
  (B)  THE PROVISIONS OF SUBDIVISION (A) OF THIS SECTION SHALL NOT APPLY
IF THE EMPLOYER IS REQUIRED BY STATE OR FEDERAL LAW  TO  USE  INDIVIDUAL
CREDIT HISTORY FOR EMPLOYMENT PURPOSES.
  (C)  AS  USED  IN  THIS SECTION, "CREDIT HISTORY" MEANS ANY WRITTEN OR
OTHER COMMUNICATION OF ANY INFORMATION BY A  CONSUMER  REPORTING  AGENCY
THAT  BEARS ON A CONSUMER'S CREDIT WORTHINESS, CREDIT STANDING OR CREDIT
CAPACITY.
  (D) (1) WHEREVER THERE SHALL BE A VIOLATION OF THIS SECTION, AN APPLI-
CATION MAY BE MADE BY THE ATTORNEY GENERAL IN THE NAME OF THE PEOPLE  OF
THE  STATE  OF  NEW  YORK TO A COURT OR JUSTICE HAVING JURISDICTION BY A
SPECIAL PROCEEDING TO ISSUE  AN  INJUNCTION,  AND  UPON  NOTICE  TO  THE
DEFENDANT  OF NOT LESS THAN FIVE DAYS, TO ENJOIN OR RESTRAIN THE CONTIN-
UANCE OF SUCH VIOLATION; AND IF IT SHALL APPEAR TO THE  SATISFACTION  OF
THE  COURT  OR  JUSTICE  THAT  THE DEFENDANT HAS, IN FACT, VIOLATED THIS
SECTION, AN INJUNCTION MAY BE ISSUED BY SUCH COURT OR JUSTICE, ENJOINING
AND RESTRAINING ANY FURTHER VIOLATION, WITHOUT REQUIRING PROOF THAT  ANY
PERSON  HAS,  IN  FACT,  BEEN  INJURED  OR  DAMAGED THEREBY. IN ANY SUCH
PROCEEDING, THE COURT MAY MAKE ALLOWANCES TO  THE  ATTORNEY  GENERAL  AS
PROVIDED  IN  PARAGRAPH  SIX  OF SUBDIVISION (A) OF SECTION EIGHTY-THREE
HUNDRED THREE OF THE CIVIL PRACTICE LAW AND RULES, AND  DIRECT  RESTITU-
TION.    WHENEVER  THE  COURT  SHALL  DETERMINE THAT A VIOLATION OF THIS
SECTION HAS OCCURRED, THE COURT MAY IMPOSE A CIVIL PENALTY OF  NOT  MORE
THAN  TWO  THOUSAND  DOLLARS  FOR EACH VIOLATION. IN CONNECTION WITH ANY
SUCH PROPOSED APPLICATION, THE ATTORNEY GENERAL IS  AUTHORIZED  TO  TAKE
PROOF  AND  MAKE  A  DETERMINATION  OF  THE  RELEVANT FACTS AND TO ISSUE
SUBPOENAS IN ACCORDANCE WITH THE CIVIL PRACTICE LAW AND RULES.
  (2) ANY PERSON INJURED BY A VIOLATION OF THIS  SECTION  MAY  BRING  AN
ACTION  IN  HIS OR HER OWN NAME TO ENJOIN SUCH UNLAWFUL ACT OR PRACTICE,
AN ACTION TO RECOVER HIS OR HER ACTUAL DAMAGES OR  THREE  THOUSAND  FIVE
HUNDRED  DOLLARS, WHICHEVER IS GREATER, OR BOTH SUCH ACTIONS.  THE COURT
MAY, IN ITS DISCRETION, INCREASE THE AWARD OF DAMAGES TO AN  AMOUNT  NOT

A. 2034--A                          3

TO  EXCEED THREE TIMES THE ACTUAL DAMAGES UP TO TEN THOUSAND DOLLARS, IF
THE COURT FINDS THE DEFENDANT WILLFULLY OR KNOWINGLY VIOLATED THIS ARTI-
CLE. IN THE CASE OF ANY  SUCCESSFUL  ACTION  TO  ENFORCE  THE  FOREGOING
LIABILITY,  THE  COURT  MAY  AWARD THE COSTS OF THE ACTION TOGETHER WITH
REASONABLE ATTORNEY'S FEES.
  (E) A CONSUMER MAY FILE  A  COMPLAINT  ALLEGING  A  VIOLATION  OF  THE
PROVISIONS  OF THIS SUBDIVISION WITH THE DEPARTMENT OF LABOR PURSUANT TO
SECTION TWO HUNDRED NINETEEN-D OF THE LABOR LAW.
  S 5. Subdivision (d) of section 380-c of the general business law,  as
added by chapter 867 of the laws of 1977, is amended to read as follows:
  (d)  If a person applying for credit, insurance, or employment refuses
to authorize the procurement or preparation of an investigative consumer
report, the prospective creditor, insurer or  employer  may  decline  to
grant  credit, insurance or employment on the grounds that the applicant
refused to  execute  such  authorization;  PROVIDED,  HOWEVER,  THAT  AN
EMPLOYER  SHALL NOT REFUSE TO HIRE A PROSPECTIVE EMPLOYEE ON THE GROUNDS
THAT THE PROSPECTIVE EMPLOYEE REFUSES TO AUTHORIZE  THE  PROCUREMENT  OF
INFORMATION  TO  WHICH  THE EMPLOYER IS NOT ENTITLED PURSUANT TO SECTION
THREE HUNDRED EIGHTY-U OF THIS ARTICLE.
  S 6. Section 380-i of the general business law is amended by adding  a
new subdivision (d) to read as follows:
  (D) IN USING A CONSUMER REPORT OR INVESTIGATIVE CONSUMER REPORT, WHERE
THE  REPORT CONTAINS INFORMATION BEARING ON THE CONSUMER'S CREDITWORTHI-
NESS, CREDIT STANDING OR CREDIT CAPACITY, AN EMPLOYER, OR AGENT,  REPRE-
SENTATIVE  OR DESIGNEE THEREOF BEFORE TAKING ANY ADVERSE ACTION BASED IN
WHOLE OR PART ON THE REPORT, SHALL  PROVIDE  TO  THE  JOB  APPLICANT  OR
EMPLOYEE:
  (1)  THE NAME, ADDRESS, AND TELEPHONE NUMBER OF THE CONSUMER REPORTING
AGENCY PROVIDING THE REPORT;
  (2) A DESCRIPTION OF THE CONSUMER'S RIGHTS UNDER SECTION THREE HUNDRED
EIGHTY-B OF THIS ARTICLE; AND
  (3) A REASONABLE OPPORTUNITY TO RESPOND  TO  ANY  INFORMATION  IN  THE
REPORT THAT IS DISPUTED BY THE CONSUMER.
  S 7. The labor law is amended by adding a new section 219-d to read as
follows:
  S  219-D.  FILING OF COMPLAINT.   ANY EMPLOYEE OR PROSPECTIVE EMPLOYEE
MAY  FILE  WITH  THE  COMMISSIONER  A  COMPLAINT  REGARDING  AN  ALLEGED
VIOLATION  OF SECTION THREE HUNDRED EIGHTY-U OF THE GENERAL BUSINESS LAW
FOR AN INVESTIGATION OF SUCH COMPLAINT AND STATEMENT SETTING THE  APPRO-
PRIATE REMEDY, IF ANY.
  S 8. This act shall take effect on the one hundred eightieth day after
it shall have become a law.