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Publication and notices ​

Local Law 144 and the DCWP rules give three transparency obligations for an automated employment decision tool (AEDT) in New York City. Each obligation applies to the employer or employment agency that uses the AEDT:

  • Publication of bias audit results (§ 20-871(a)(2), 6 RCNY § 5-303). This obligation is a condition of use. In § 20-871(a), it is "unlawful" for the employer or employment agency to use an AEDT to screen a candidate or employee for an employment decision unless two conditions apply. One condition is a bias audit not more than one year before the use (see The bias audit and its data). The other condition is that the summary of results of the most recent bias audit and the distribution date are publicly available on the website before the use.
  • Candidate and employee notice (§ 20-871(b)(1)–(2), 6 RCNY § 5-304(a)–(c)).
  • Data transparency disclosures (§ 20-871(b)(3), 6 RCNY § 5-304(d)).

The notice and the data disclosures are not conditions of use. Section 20-871(b) gives them as a different obligation. The employer or employment agency must notify each employee, and each candidate who applied for a position, of the items in § 20-871(b)(1) and (2). It must also make the information of § 20-871(b)(3) available, as § 20-871(b)(3) and 6 RCNY § 5-304(d) give. These obligations apply if the person resides in the city and the employer or employment agency uses the AEDT to screen the person for an employment decision.

The Statement of Basis and Purpose of the DCWP rules and FAQ I.1 (not law) give the law in short. In these two sources, DCWP puts the notices together with the bias audit, as conditions for the use of an AEDT. But § 20-871 gives the bias audit and the results in subdivision (a), and the notice and the data disclosures in subdivision (b).

The DCWP rules use the names "candidate for employment" (with its definition in 6 RCNY § 5-300) and "employee being considered for promotion" (6 RCNY § 5-304(b)–(c)) for these persons. The DCWP FAQ (I.6, not law) also uses these names for the persons that the bias audit and notice obligations apply to. Where this page gives the rules, it uses the names of the rules.

The statute makes the summary of results and the distribution date necessary on the website before the use. These items come from 6 RCNY § 5-303, not from the statute:

  • the posted date of the most recent bias audit
  • the employment section of the website
  • the "clear and conspicuous manner"
  • the hyperlink alternative
  • the period of 6 months after the latest use.

Publication of bias audit results ​

Section 20-871(a)(2) of Local Law 144 gives this condition for each employer or employment agency that uses an AEDT:

... 2. A summary of the results of the most recent bias audit of such tool as well as the distribution date of the tool to which such audit applies has been made publicly available on the website of the employer or employment agency prior to the use of such tool.

6 RCNY § 5-303 gives the rules for the posted items:

ItemRule
LocationThe employment section of the website of the employer or employment agency, in a "clear and conspicuous manner" (§ 5-303(a))
TimeBefore the use of the AEDT (§ 5-303(a))
Contents(1) The date of the most recent bias audit of the AEDT and a summary of results. The summary of results must include "the source and explanation of the data used to conduct the bias audit, the number of individuals the AEDT assessed that fall within an unknown category, and the number of applicants or candidates, the selection or scoring rates, as applicable, and the impact ratios for all categories" (§ 5-303(a)(1)). (2) The distribution date of the AEDT (§ 5-303(a)(2)).
Hyperlink alternativeThe employer or employment agency is permitted to comply with § 5-303(a) by an active hyperlink. The link must go to a website that has the summary of results and the distribution date. The link must be "clearly identified as a link to results of the bias audit" (§ 5-303(b)). The hyperlink is a permitted method to comply with § 5-303(a). It does not make a different location necessary.
Period after the latest useThe employer or employment agency must keep the summary of results and the distribution date posted for a minimum of 6 months after its latest use of the AEDT for an employment decision (§ 5-303(c)).

Four more points apply to the posted items:

  • Distribution date. In 6 RCNY § 5-300, the distribution date is "the date the employer or employment agency began using a specific AEDT". Thus it is not the date when a vendor first makes the AEDT available.
  • Excluded categories and test data. If the independent auditor excludes a category from the impact ratio calculations (§ 5-301(d)), the summary of results must include "the independent auditor's justification for the exclusion, as well as the number of applicants and scoring rate or selection rate for the excluded category". If the bias audit uses test data, the summary of results must "explain why historical data was not used and describe how the test data used was generated and obtained" (§ 5-302(b)). For these items, see The bias audit and its data.
  • New bias audit. Section 20-871(a)(2) makes the summary of results of the most recent bias audit necessary before the use. Thus, after a new bias audit, the employer or employment agency must post the new summary of results before it continues to use the AEDT. In § 5-301(a), the employer or employment agency must not use or continue to use the AEDT more than one year after the most recent bias audit.
  • Latest use. The period of 6 months starts at the latest use of the AEDT for an employment decision. If the employer or employment agency stops the use of the AEDT, it must not remove the summary of results and the distribution date before these 6 months end. Section 5-303(c) applies to these two items only. It does not apply to the information or the instructions of § 5-304(d).

Each day on which the employer or employment agency uses the AEDT in violation is a separate violation of § 20-871(a) (§ 20-872(b)). This includes each day of use before the employer or employment agency makes the summary of results of the most recent bias audit and the distribution date publicly available on its website (§ 20-871(a)(2)). For the penalties, see Enforcement and penalties.

Candidate and employee notice ​

Section 20-871(b) of Local Law 144 gives a notice obligation to each employer or employment agency that uses an AEDT in the city. The employer or employment agency must notify each person if all of these conditions apply:

  • The person is an employee, or a candidate who applied for a position.
  • The employer or employment agency uses the AEDT to screen that person for an employment decision.
  • The person resides in the city.

Section 20-871(b)(1)–(2) gives the notice items and the time:

  1. That an automated employment decision tool will be used in connection with the assessment or evaluation of such employee or candidate that resides in the city. Such notice shall be made no less than ten business days before such use and allow a candidate to request an alternative selection process or accommodation; 2. The job qualifications and characteristics that such automated employment decision tool will use in the assessment of such candidate or employee. Such notice shall be made no less than 10 business days before such use; ...

The employer or employment agency must give the notice a minimum of 10 business days before it uses the AEDT to assess that person. The notice must contain three items:

  • the fact that the employer or employment agency will use an AEDT in connection with the assessment or evaluation of the person (§ 20-871(b)(1))
  • the job qualifications and characteristics that the AEDT will use to assess the person (§ 20-871(b)(2))
  • instructions "for how an individual can request an alternative selection process or a reasonable accommodation under other laws, if available" (6 RCNY § 5-304(a)).

Section 5-304(a) also gives this rule: "Nothing in this subchapter requires an employer or employment agency to provide an alternative selection process."

6 RCNY § 5-304(b)–(c) gives the permitted methods for each group. To comply with § 20-871(b)(1) and (2), the employer or employment agency is permitted to use one or more of them. The 10 business days apply to each method.

PersonsPermitted methods
Candidates for employment who reside in the city (§ 5-304(b))The employer or employment agency gives notice by one or more of these methods: (1) on the employment section of its website, in a "clear and conspicuous manner", (2) in a job posting, or (3) to candidates for employment by U.S. mail or e-mail.
Employees being considered for promotion who reside in the city (§ 5-304(c))The employer or employment agency gives notice by one or more of these methods: (1) in a written policy or procedure that it gives to employees, (2) in a job posting, or (3) by U.S. mail or e-mail.

Section 5-304(c) does not include the website notice for employees being considered for promotion.

The DCWP FAQ (June 29, 2023) gives "general information and guidance". It is not law. It gives these points (FAQ VI.1–VI.2):

  • It is not necessary for a notice on the employment section of the website to identify the position.
  • The employer or employment agency can start to use the AEDT 10 business days after it posts the website notice. The date of a job posting does not change this start.
  • It is not necessary for a notice in a written policy or procedure for employees being considered for promotion to identify the position.

The 10 business days for a written policy or procedure start when the employer or employment agency gives it to the employees (§ 5-304(c)(1)). If an employee gets the policy at a subsequent date, the 10 business days for that employee start on that date (§ 20-871(b)(1)–(2) and § 5-304(c)(1)). They do not start on the initial date of the policy.

Two more points are on other pages:

  • The law applies to the use of an AEDT in the city. The notice is for persons who reside in the city. These are two different conditions. A tool that screens employees for promotion is an AEDT only if all parts of the AEDT definition apply to it. See Scope and applicability.
  • Each time that the employer or employment agency does not give a notice in violation of § 20-871(b)(1) or (2), that is a separate violation (§ 20-872(c)). See Enforcement and penalties.

Data transparency disclosures ​

Section 20-871(b)(3) of Local Law 144 gives this obligation about the data for an AEDT to the employer or employment agency:

  1. If not disclosed on the employer or employment agency's website, information about the type of data collected for the automated employment decision tool, the source of such data and the employer or employment agency's data retention policy shall be available upon written request by a candidate or employee. Such information shall be provided within 30 days of the written request. Information pursuant to this section shall not be disclosed where such disclosure would violate local, state, or federal law, or interfere with a law enforcement investigation.

The information has three items:

  • the type of data collected for the AEDT
  • the source of that data
  • the data retention policy of the employer or employment agency. The rule names it the "AEDT data retention policy" (6 RCNY § 5-304(d)(1)). It is a policy of the employer or employment agency, not a policy of the AEDT.

6 RCNY § 5-304(d) gives the obligations to comply with § 20-871(b)(3). The employer or employment agency must do all three of these:

  • It must give information about the three items on the employment section of its website, in a "clear and conspicuous manner" (§ 5-304(d)(1)).
  • It must post instructions for how to make a written request for this information. It must post them on the employment section of its website, in a "clear and conspicuous manner". If it receives a written request, it must give the information not more than 30 days after the written request (§ 5-304(d)(2)).
  • It must give a candidate for employment or an employee being considered for promotion an explanation "why disclosure of such information would violate local, state, or federal law, or interfere with a law enforcement investigation" (§ 5-304(d)(3)). The employer or employment agency gives this explanation when § 20-871(b)(3) does not let it disclose the information.

Four points apply to the information, the instructions, and the written request:

  • The 30 days start on the date of the written request (§ 20-871(b)(3)).
  • The text "clear and conspicuous manner" applies to the information and, independently, to the instructions (§ 5-304(d)(1)–(2)).
  • Section 5-304(d) gives no hyperlink alternative. The hyperlink of § 5-303(b) is for the posted bias audit results only.
  • In § 5-304(d)(2), the text "such information" refers to the three items. Section 5-304(d)(2) does not make other information necessary on a written request.

Section 20-871(b)(3) makes the information available on written request "if not disclosed on the employer or employment agency's website". But § 5-304(d) gives the three obligations together. If an employer or employment agency uses the website and the written request as alternatives, it follows the statute and not the text of the rule. The DCWP rules are also law. Section 20-872(a) makes a person that violates "any rule promulgated pursuant to this subchapter" liable for a civil penalty.

Section 20-871(b)(3) gives a limit: "Information pursuant to this section shall not be disclosed where such disclosure would violate local, state, or federal law, or interfere with a law enforcement investigation".

If this limit applies, the employer or employment agency must not disclose the information, and it must give the explanation of § 5-304(d)(3). If this limit does not apply, it must give the information. If the employer or employment agency discloses the information when the limit applies, it does not obey § 20-871(b)(3).

The three items are different from the source and explanation of the data in the summary of results. Section 5-303(a)(1) makes the source and explanation necessary in the summary of results, and § 5-304(d)(1) makes the three items necessary. Thus one disclosure does not replace the other.

Each time that the employer or employment agency does not give this information in violation of § 20-871(b)(3), that is a separate violation (§ 20-872(c)). If it does not disclose the information because the limit applies, that is not a violation of § 20-871(b)(3). Then the employer or employment agency must give the explanation of § 5-304(d)(3). See Enforcement and penalties.

The three obligations side by side ​

Local Law 144 and the DCWP rules give the employer or employment agency these three obligations for each AEDT:

Publication of bias audit resultsCandidate and employee noticeData transparency disclosures
PersonsAll persons. The items are publicly available.Candidates for employment and employees being considered for promotion who reside in the city, if the AEDT screens them for an employment decisionCandidates for employment and employees being considered for promotion who reside in the city, if the AEDT screens them for an employment decision
ContentsThe date of the most recent bias audit, the summary of results, and the distribution dateThe use of an AEDT. The job qualifications and characteristics that the AEDT will use. Instructions to request an alternative selection process or a reasonable accommodation "under other laws, if available".The type of data collected for the AEDT, the source of the data, and the data retention policy of the employer or employment agency
TimeBefore the use. The summary of results and the distribution date stay posted for a minimum of 6 months after the latest use for an employment decision.A minimum of 10 business days before the employer or employment agency uses the AEDT to assess the personThe employer or employment agency posts the information on the employment section of its website (§ 5-304(d)(1)). It gives the information not more than 30 days after a written request (§ 5-304(d)(2)).
LocationThe employment section of the website, in a "clear and conspicuous manner". A clearly identified active hyperlink is a permitted method to comply with § 5-303(a) (§ 5-303(b)).Candidates for employment: the employment section of the website in a "clear and conspicuous manner", a job posting, or U.S. mail or e-mail. Employees being considered for promotion: a written policy or procedure given to employees, a job posting, or U.S. mail or e-mail.The employment section of the website, in a "clear and conspicuous manner", for the information and, independently, for the instructions for a written request. No hyperlink alternative.

The employer or employment agency must comply with each of the three obligations (§ 20-871(a)(2) and (b)). Compliance with one obligation does not replace compliance with a different obligation. The posted results and the bias audit also do not replace each other, because § 20-871(a) makes each of the two conditions of use necessary.

How this maps in Modulos ​

In Modulos, the MFF-27 Framework gives each obligation as one Requirement: MRF-479 Publication of bias audit results, MRF-480 Candidate and employee notice, and MRF-481 Data transparency disclosures. For the steps that Modulos recommends for these obligations, see Steps that Modulos recommends.

Where to go next ​

Disclaimer

This page gives general information only. It is not legal advice. Always compare this page with the publicly available text of N.Y.C. Administrative Code §§ 20-870–874 and 6 RCNY §§ 5-300–5-304 that is in effect at this time. Get legal advice from a lawyer.