S T A T E   O F   N E W   Y O R K
       ________________________________________________________________________
                                         1446
                              2015-2016 Regular Sessions
                                 I N  A S S E M B L Y
                                   January 12, 2015
                                      ___________
       Introduced by M. of A. TEDISCO, CROUCH -- Multi-Sponsored by -- M. of A.
         BARCLAY,  FINCH,  FITZPATRICK,  GIGLIO,  KOLB,  McDONOUGH, OAKS, RAIA,
         SALADINO, THIELE -- read once and referred to the Committee on Codes
       AN ACT to amend the  social  services  law,  in  relation  to  requiring
         employers and information technology employees to report child pornog-
         raphy to the state police
         THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
       BLY, DO ENACT AS FOLLOWS:
    1    Section 1. The social services law is amended by adding a new  section
    2  413-a to read as follows:
    3    S  413-A.  REPORTING OF CHILD PORNOGRAPHY BY EMPLOYERS AND INFORMATION
    4  TECHNOLOGY EMPLOYEES TO THE STATE POLICE. 1. REPORTING.  NOTWITHSTANDING
    5  ANY OTHER PROVISION OF LAW, ANY EMPLOYER, ANY COMPUTER ENGINEER, COMPUT-
    6  ER TECHNICIAN, MANAGEMENT INFORMATION ENGINEER OR MANAGEMENT INFORMATION
    7  TECHNICIAN WHO HAS KNOWLEDGE OF, OR OBSERVES, WITHIN THE SCOPE OF HIS OR
    8  HER PROFESSIONAL  CAPACITY  OR  EMPLOYMENT,  ANY  COMPUTER  IMAGE  WHICH
    9  DEPICTS  A  CHILD  WHOM  THE  EMPLOYER,  ENGINEER OR TECHNICIAN KNOWS OR
   10  REASONABLY SHOULD KNOW, TO BE UNDER THE AGE  OF  SEVENTEEN,  WHERE  SUCH
   11  CHILD IS:
   12    (A)  ACTUALLY,  OR  BY SIMULATION, ENGAGED IN ANY ACT OF SEXUAL INTER-
   13  COURSE WITH ANY PERSON OR ANIMAL;
   14    (B) ACTUALLY, OR BY SIMULATION, ENGAGED IN ANY ACT OF  SEXUAL  CONTACT
   15  INVOLVING  THE  MOUTH, ANUS OR SEXUAL ORGANS OF THE CHILD AND THE MOUTH,
   16  ANUS OR SEXUAL ORGANS OF ANOTHER PERSON OR ANIMAL;
   17    (C) ACTUALLY, OR BY SIMULATION, ENGAGED IN ANY ACT OF MASTURBATION;
   18    (D) ACTUALLY, OR BY SIMULATION, PORTRAYED AS BEING THE OBJECT  OF,  OR
   19  OTHERWISE  ENGAGED  IN  ANY ACT OF LEWD FONDLING, TOUCHING OR CARESSING,
   20  INVOLVING ANOTHER PERSON OR ANIMAL;
   21    (E) ACTUALLY, OR BY SIMULATION, ENGAGED IN ANY  ACT  OF  EXCRETION  OR
   22  URINATION WITHIN A SEXUAL CONTEXT; OR
        EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                             [ ] is old law to be omitted.
                                                                  LBD02614-01-5
       A. 1446                             2
    1    (F)  ACTUALLY,  OR  BY  SIMULATION,  PORTRAYED  OR  DEPICTED AS BOUND,
    2  FETTERED, OR SUBJECT TO SADISTIC, MASOCHISTIC OR  SADOMASOCHISTIC  ABUSE
    3  IN ANY SEXUAL CONTACT;
    4  SHALL    REPORT SUCH INSTANCES TO THE STATE POLICE IMMEDIATELY OR WITHIN
    5  TWENTY-FOUR HOURS OF DISCOVERY.
    6    2. FAILURE TO REPORT. WILLFUL FAILURE TO REPORT SHALL BE PUNISHABLE BY
    7  A CLASS A MISDEMEANOR.
    8    3. FALSELY REPORTING. ANY EMPLOYER, COMPUTER ENGINEER, COMPUTER  TECH-
    9  NICIAN,  MANAGEMENT INFORMATION ENGINEER OR MANAGEMENT INFORMATION TECH-
   10  NICIAN WHO FALSELY REPORTS A CASE OF CHILD PORNOGRAPHY SHALL BE  SUBJECT
   11  TO THE PENALTIES CONTAINED UNDER SECTION 240.50 OF THE PENAL LAW.
   12    4.  IMMUNITY FROM LIABILITY. ANY EMPLOYER, COMPUTER ENGINEER, COMPUTER
   13  TECHNICIAN, MANAGEMENT INFORMATION ENGINEER  OR  MANAGEMENT  INFORMATION
   14  TECHNICIAN  PARTICIPATING IN GOOD FAITH, PURSUANT TO THIS SECTION, SHALL
   15  HAVE IMMUNITY FROM ANY LIABILITY, CIVIL OR CRIMINAL, THAT  MIGHT  OTHER-
   16  WISE  RESULT  BY REASON OF SUCH ACTION. FOR THE PURPOSES OF ANY CIVIL OR
   17  CRIMINAL PROCEEDING, THE GOOD FAITH OF ANY  PERSON  REQUIRED  TO  REPORT
   18  SUCH  CASES  SHALL  BE  PRESUMED,  PROVIDED  SUCH  PERSON  WAS ACTING IN
   19  DISCHARGE OF THEIR DUTIES AND WITHIN THE SCOPE OR THEIR EMPLOYMENT,  AND
   20  THAT  SUCH LIABILITY DID NOT RESULT FROM THE WILLFUL MISCONDUCT OR GROSS
   21  NEGLIGENCE OF SUCH PERSON, OFFICIAL OR INSTITUTION.
   22    5. RETALIATORY PERSONNEL ACTION BY  EMPLOYERS;  PROHIBITIONS.  (A)  AN
   23  EMPLOYER  SHALL NOT TAKE RETALIATORY PERSONNEL ACTION AGAINST AN EMPLOY-
   24  EE, WHO PURSUANT TO THIS SECTION, REPORTS INSTANCES OF CHILD PORNOGRAPHY
   25  TO THE STATE POLICE.
   26    (B)(I) AN EMPLOYEE WHO HAS BEEN THE SUBJECT OF A RETALIATORY PERSONNEL
   27  ACTION IN VIOLATION OF THIS SUBDIVISION MAY INSTITUTE A CIVIL ACTION  IN
   28  A  COURT  OF COMPETENT JURISDICTION FOR RELIEF AS SET FORTH IN PARAGRAPH
   29  (C) OF THIS SUBDIVISION WITHIN ONE YEAR AFTER  THE  ALLEGED  RETALIATORY
   30  PERSONNEL ACTION WAS TAKEN.
   31    (II)  ANY  ACTION AUTHORIZED BY THIS SUBDIVISION MAY BE BROUGHT IN THE
   32  COUNTY IN WHICH THE ALLEGED RETALIATORY PERSONNEL  ACTION  OCCURRED,  IN
   33  THE  COUNTY  IN WHICH THE COMPLAINANT RESIDES, OR IN THE COUNTY IN WHICH
   34  THE EMPLOYER HAS ITS PRINCIPAL PLACE OF BUSINESS.
   35    (III) IT SHALL BE A DEFENSE TO ANY ACTION  BROUGHT  PURSUANT  TO  THIS
   36  SUBDIVISION  THAT THE PERSONNEL ACTION WAS PREDICATED UPON GROUNDS OTHER
   37  THAN THE EMPLOYEE'S EXERCISE OF ANY RIGHTS PROTECTED  BY  THIS  SUBDIVI-
   38  SION.
   39    (C)  IN  ANY ACTION BROUGHT PURSUANT TO PARAGRAPH (B) OF THIS SUBDIVI-
   40  SION, THE COURT MAY ORDER RELIEF AS FOLLOWS:
   41    (I) AN INJUNCTION TO RESTRAIN CONTINUED VIOLATION OF THIS SECTION;
   42    (II) THE REINSTATEMENT OF THE  EMPLOYEE  TO  THE  SAME  POSITION  HELD
   43  BEFORE THE RETALIATORY PERSONNEL ACTION, OR TO AN EQUIVALENT POSITION;
   44    (III) THE REINSTATEMENT OF FULL FRINGE BENEFITS AND SENIORITY RIGHTS;
   45    (IV) THE COMPENSATION FOR LOST WAGES, BENEFITS AND OTHER REMUNERATION;
   46  AND
   47    (V)  THE  PAYMENT  BY THE EMPLOYER OF REASONABLE COSTS, DISBURSEMENTS,
   48  AND ATTORNEY'S FEES.
   49    (D) A COURT, IN ITS DISCRETION, MAY ALSO ORDER THAT REASONABLE  ATTOR-
   50  NEYS'  FEES  AND COURT COSTS AND DISBURSEMENTS BE AWARDED TO AN EMPLOYER
   51  IF THE COURT DETERMINES THAT AN ACTION BROUGHT BY AN EMPLOYEE UNDER THIS
   52  SUBDIVISION WAS WITHOUT BASIS IN LAW OR IN FACT.
   53    (E) NOTHING IN THIS  SUBDIVISION  SHALL  BE  DEEMED  TO  DIMINISH  THE
   54  RIGHTS,  PRIVILEGES,  OR REMEDIES OF ANY EMPLOYEE UNDER ANY OTHER LAW OR
   55  REGULATION OR UNDER ANY COLLECTIVE BARGAINING  AGREEMENT  OR  EMPLOYMENT
   56  CONTRACT;  EXCEPT  THAT  THE INSTITUTION OF AN ACTION IN ACCORDANCE WITH
       A. 1446                             3
    1  THIS SUBDIVISION SHALL BE DEEMED A WAIVER OF  THE  RIGHTS  AND  REMEDIES
    2  AVAILABLE  UNDER  ANY  OTHER  CONTRACT, COLLECTIVE BARGAINING AGREEMENT,
    3  LAW, RULE OR REGULATION OR UNDER THE COMMON LAW.
    4    6.  DEFINITIONS.  FOR  PURPOSES  OF  THIS  SECTION, UNLESS THE CONTEXT
    5  SPECIFICALLY INDICATES OTHERWISE:
    6    (A) "EMPLOYEE" MEANS AN INDIVIDUAL WHO PERFORMS SERVICES FOR AND UNDER
    7  THE CONTROL AND DIRECTION OF AN EMPLOYER FOR WAGES  OR  OTHER  REMUNERA-
    8  TION.
    9    (B)  "EMPLOYER"  MEANS  ANY  PERSON,  FIRM,  PARTNERSHIP, INSTITUTION,
   10  CORPORATION, OR ASSOCIATION THAT EMPLOYS ONE OR MORE EMPLOYEES.
   11    (C) "RETALIATORY PERSONNEL ACTION" MEANS THE DISCHARGE, SUSPENSION  OR
   12  DEMOTION  OF  AN  EMPLOYEE,  OR  OTHER  ADVERSE  EMPLOYMENT ACTION TAKEN
   13  AGAINST AN EMPLOYEE IN THE TERMS AND CONDITIONS OF EMPLOYMENT.
   14    S 2. This act shall take effect on the ninetieth day  after  it  shall
   15  have become a law.