NY Lab L § 537 (2021)
2021 New York Laws LAB - Labor Article 18 - Unemployment Insurance Law Title 3 - Administration 537 - Disclosures Prohibited.

§   537.   Disclosures   prohibited.   1.  a.  Unemployment  insurance information.   (i) Unemployment  insurance  information  is  information contained   in   the   records  of  the  department  pertaining  to  the administration of this article, including information  obtained  by  the department  from  employers  and employees pursuant to this article. The term includes wage reporting information obtained by the department from the state department of taxation and  finance  pursuant  to  subdivision four  of  section  one  hundred  seventy-one-a  and  paragraph  four  of subsection (a) of section six hundred seventy-four of the  tax  law.  It further  includes  information  in the state directory of new hires that has been disclosed  to  the  department  for  use  in  the  unemployment insurance  program.  Such  information does not include the personnel or general fiscal information of  the  department  or  information  in  the public domain.  (ii) For purposes of this paragraph, the term public domain means: (A) information  about  the department and the unemployment insurance appeal board; (B) information about applicable state and federal law, rules and regulations   pertaining   to    unemployment    insurance,    including interpretations   thereof   and   statements   of   general  policy  and interpretations of general  applicability  but  excluding  investigative manuals and procedures pertaining to unemployment insurance; and (C) any agreements   relating   to   the   administration   of   this   article. Notwithstanding the foregoing, nothing  in  this  subdivision  shall  be construed to limit, restrict, or abrogate the department's right to deny access  to any records pursuant to the provisions of the public officers law.   b. Use of unemployment insurance information.  Unemployment  insurance information  shall  be  for  the  exclusive  use  and information of the commissioner in the discharge of his or her duties  under  this  chapter and  shall  not  be  open  to the public nor be used in any court in any action or proceeding pending therein unless the commissioner is a  party to  such  action  or  proceeding,  or such action or proceeding involves information provided pursuant to paragraph g  of  subdivision  three  of this   section,  notwithstanding  any  other  provisions  of  law.  Such information insofar as it is material to the making and determination of a claim for benefits or to adjudicating a claim for  benefits  shall  be available to the parties affected and, in the commissioner's discretion, may  be  made  available  to  the  parties  affected  in connection with effecting placement.   c. Disclosure of unemployment insurance information to  an  individual or  employer.  (i)  The  department  may disclose unemployment insurance information about an  individual  to  such  individual  or  unemployment insurance information about an employer to such employer. As a condition to  making  such  disclosure,  the  department  shall  require a written authorization to  disclose  such  information  from  the  individual  or employer in a form acceptable to the department together with such proof of  identity  or  authorization  to  act  on behalf of the individual or employer as the commissioner shall deem appropriate. Notwithstanding the foregoing, except as may otherwise be authorized under  paragraph  b  of this subdivision, this paragraph shall not be construed to authorize the department  to disclose information acquired from an employer under this article to an individual or information acquired from an employee  under this article to an employer.  (ii)  Nothing  in  this subdivision shall be construed to prohibit the disclosure of the wage reporting information obtained by the  department from the department of taxation and finance pursuant to subdivision four of  section  one  hundred seventy-one-a and paragraph four of subsection (a) of section six hundred seventy-four of the tax law pertaining to  an  individual  to  such  individual  or  pertaining  to an employer to such employer.   d.  Disclosure  upon informed consent. (i) The department may disclose unemployment insurance information about an individual or an employer to an agent of such individual or employer, or to a  third  party,  on  the basis  of informed consent received from such individual or employer. An informed consent from an individual shall not be construed to  authorize the  department  to disclose information acquired from an employer under this article to an agent or third party identified  in  an  individual's informed consent nor to authorize the department to disclose information acquired  from  an  individual  under this article to the agent or third party identified in the employer's informed  consent.  Nothing  in  this subdivision  shall  be  construed to prohibit the disclosure of the wage reporting information obtained by the department from the department  of taxation and finance pursuant to subdivision four of section one hundred seventy-one-a  and  paragraph  four  of  subsection  (a)  of section six hundred seventy-four of the tax law pertaining to an individual  to  the agent  or third party identified in the individual's informed consent or pertaining to an employer to the agent or third party identified in  the employer's consent.  (ii)  Informed  consent  shall  consist  of a written release from the individual or employer to whom the information pertains. Where a written release is impossible or impracticable to  obtain,  the  department  may accept  an  informed  consent  from  a  representative acceptable to the department, including but not limited to  a  conservator,  guardian,  or executor  or  administrator  of  a decedent's estate, together with such documentation as the  department  deems  necessary,  including  but  not limited  to  orders  of  appointment  or  letters  of administration, to establish the right of the representative to  act  on  the  individual's behalf. An informed consent must include a statement:  (A) specifically identifying the information that is to be disclosed;  (B) acknowledging that department files will be accessed to obtain the information;  (C)  identifying  the  specific  purpose  or  purposes  for  which the information is sought, subject to the limitations  on  such  purpose  or purposes  set  forth  in  subparagraph  (iii)  of  this  paragraph,  and indicating that information obtained under the release will only be used for that purpose or purposes; and  (D) identifying all  the  parties  who  may  receive  the  information disclosed pursuant to the consent.  (iii)  The  purpose  specified  in  the  release  must  be  limited to providing a service or benefit to the  individual  signing  the  release that  such  individual  expects  to  receive  as a result of signing the release or for the purpose of carrying out administration or  evaluation of a public program to which the release pertains.   e.   Funding   for  disclosure  of  requested  unemployment  insurance information.  Except  as  permitted  under  applicable  federal  law  or regulation,   or  as  otherwise  authorized  by  agreement  between  the department  and  the  United  States  Department   of   Labor,   federal unemployment  insurance  grant funds shall not be used to pay for any of the costs incurred by  the  department  in  processing  and  handling  a request  for  disclosure  of  unemployment  information  made under this article.   2. Violations of the confidentiality provisions of this  section.  Any person,  who,  without  authority  of  the  commissioner or as otherwise required  by  law,  shall  disclose  information  in  violation  of  the confidentiality  provisions  of  this section, upon conviction, shall be guilty of a misdemeanor.    3. Exceptions. The commissioner may, however, disclose the information described in subdivisions  one  and  four  of  this  section  under  the following circumstances:   a.  Federal law. The commissioner shall report fully and completely to the  appropriate  agency  of  the  United  States  on  the  effect   and administration  of this article in the manner prescribed by such agency, and further he or she shall make information available, upon request, to any federal, state or local agency entitled to  such  information  under the  social  security  act  or  any  other  federal  law  in  the manner prescribed by such federal law or its implementing regulations.   b. Chief administrator of the courts; commissioners of jurors;  county clerks;  chief  judges  of  United States district courts; clerks of the court or jury administrators of the United States district courts.  (i) The commissioner shall provide  lists  of  the  names  of  persons receiving  unemployment insurance benefits to the chief administrator of the courts, appointed  pursuant  to  section  two  hundred  ten  of  the judiciary  law.  The  lists  shall  be  provided for the sole purpose of integration into lists of prospective jurors as provided by section five hundred six of the judiciary law. The chief administrator of the  courts shall   upon   request   provide  information  from  the  lists  to  the commissioner of jurors in each county or, in  a  county  within  a  city having  a  population  of  one million or more, the county clerk of said county, solely for the purpose of compiling lists of prospective  jurors for  the appropriate county. The lists of persons receiving unemployment insurance benefits shall be provided  only  pursuant  to  a  cooperative agreement  between  the  chief  administrator  of  the  courts  and  the commissioner  that  is  consistent  with  all  federal  regulations   or requirements   governing   such  disclosures  and  guarantees  that  all necessary steps shall be taken by the chief administrator of the courts, the commissioners of jurors and the county clerks  to  insure  that  the lists  are  kept  confidential  and that there is no unauthorized use or disclosure of such lists. Furthermore, the lists will be  provided  only if  the  chief administrator of the courts determines that the lists are needed for integration into lists of prospective jurors in one  or  more counties.  (ii)  The  commissioner  shall  provide  lists of the names of persons receiving unemployment insurance benefits to  the  chief  judge  of  any United  States  district  court in New York State, appointed pursuant to title twenty-eight of  the  United  States  Code,  section  one  hundred thirty-six.  The  lists  shall  be  provided  for  the  sole  purpose of integration into lists of  prospective  jurors  in  such  United  States district  court.  The  chief  judge  of  such  district court shall upon request provide information from the lists to the clerk of the court  or jury  administrator of such United States district court, solely for the purpose of compiling lists  of  prospective  jurors  for  such  district court.  The  lists  of persons receiving unemployment insurance benefits shall be provided only pursuant to a cooperative agreement  between  the chief  judge  of  such  district  court  and  the  commissioner  that is consistent with all federal regulations or requirements  governing  such disclosures  and  guarantees  that all necessary steps shall be taken by the chief judge of the district court, the clerk of the  court  or  jury administrator  of  such district court to insure that the lists are kept confidential and that there is no unauthorized use or disclosure of such lists. Furthermore, the lists will be provided only if the  chief  judge of  such  district  court  determines  that  the  lists  are  needed for integration into lists of prospective jurors in such district.   c. Nothing herein shall be  construed  to  prohibit  the  delivery  of unemployment  benefit  information contained in the department's records  to the secretary of health and human services of the  United  States  or the  state  agency  responsible  for  collecting  such  information,  in accordance with regulations promulgated by such secretary, as  necessary for  the  purposes of the national directory of new hires as established under section four hundred fifty-three A of the social security act,  as added  by  section three hundred thirteen of the personal responsibility and work opportunity reconciliation act of 1996, P.L. 104-193.   d. (i) Nothing herein shall be construed to  prohibit  the  disclosure quarterly,  to  the secretary of health and human services of the United States or the state agency responsible for collecting such  information, claim  information contained in the department's records, as required by section  four  hundred  fifty-three  A  of  the  social   security   act (establishing  the  national  directory)  as  amended  by  section three hundred thirteen of the personal  responsibility  and  work  opportunity reconciliation  act  of 1996, P.L. 104-193. Such claim information is to be used only for the purposes of section four hundred fifty-three  A  of the  social  security  act  in  carrying  out  child support enforcement programs. Costs of furnishing such claim information shall be reimbursed consistent with federal law and regulations.  (ii) For the purpose of this paragraph the  term  "claim  information" means  information  regarding  whether  an  individual is receiving, has received, or has made application for, unemployment insurance  benefits, the  amount  of  such  benefits being received or to be received and the individual's most recent address contained in the department's records.   e. Nothing herein shall be construed to  prohibit  the  disclosure  of claim information as defined in subparagraph (ii) of paragraph d of this subdivision  to the "state directory of new hires," as established under section one hundred seventy-one-h of the tax law as amended, and to  the state office of temporary and disability assistance for disseminating to support  collection  units  designated  by  social services districts or their duly authorized agents for all purposes designated by the personal responsibility and worker opportunity reconciliation act of 1996, public law 104-193. The cost of  providing  such  claim  information  shall  be reimbursed consistent with federal law and regulations.   f. United States census bureau. Upon request to the commissioner, such information  may  be  disclosed  to  the United States census bureau for statistical analyses related to population and  employment  measurements and  trends.  The confidentiality of such information shall be protected by subdivisions one and two of this section and title  thirteen  of  the United  States  Code  and  subject  to  the terms of a written agreement between the United States census bureau and the commissioner.   g. Federal,  state  and  local  agencies.  (i)  Upon  request  to  the commissioner,  such  information  may  be  disclosed to certain federal, state  and  local  agencies.  The  commissioner  may   require   written agreements  with  requesting  agencies  in  a  form  determined  by  the commissioner  and  consistent  with  20  CFR  603  and   other   federal regulations.  The  information  that  may  be disclosed pursuant to this paragraph shall be  disclosed  only  after  the  requesting  agency  has demonstrated,  to  the commissioner's satisfaction, that the information shall be kept confidential, except for those purposes for which  it  was provided  to  the  requesting agency, and that the requesting agency has security safeguards in place to prevent the unauthorized  disclosure  of such information.  (ii)  The  information  disclosed  pursuant  to  this paragraph may be disclosed to the following agencies  to  be  used  exclusively  for  the following legitimate governmental purposes:  (1)  any  federal, state or local agency in the investigation of fraud relating to public programs, or misuse of public funds;  (2) any state or United States  territorial  workforce  agency,  local workforce  investment  board  and  its  agents,  and  one-stop operating partner receiving funds under the workforce investment act of  1998  for program  performance purposes and other legitimate programmatic purposes authorized by the commissioner;  (3)  the  United States department of labor or its agents, as required by law, or in connection with the requirements imposed as  a  result  of receiving federal administrative funding;  (4)  state  and  local economic development agencies, or their agents, where such information is necessary to carry out the statutory functions of such agencies, shall receive a quarterly  census  of  employment  and wage   information  compiled  by  the  department,  provided  that  such disclosure  shall  not  violate  federal  law.   Any   redisclosure   of information obtained by such agencies under this clause shall be limited to  tabulation  and  publication  of  such  information in an aggregated statistical  form.  No  individual  identifying   information   obtained pursuant  to  this  clause  shall  be  redisclosed  in the course of the tabulation or publication. As used in this clause, the term  "aggregated statistical  form"  shall  mean,  in  the  case of information regarding individuals, a data set that includes information about not  fewer  than ten  individuals,  and,  in the case of employer information, a data set that includes information about no fewer than three employers, of  which no  one  employer  comprises  more than eighty percent of the aggregated data set; and  (5) the workers' compensation board, the state insurance fund and  the state  department  of  financial  services,  for purposes of determining compliance with the coverage of  workers'  compensation  and  disability insurance  and  to  the  workers'  compensation  board  for  purposes of determining eligibility for workers' compensation benefits.  (6) any federal, state, or local law enforcement agency in  accordance with  a  proper  judicial  order  or grand jury subpoena served upon the department.  (7) the office of temporary and disability assistance, or local social services districts, for purposes of establishing or verifying the income and eligibility of applicants for,  or  recipients  of,  benefits  under state public assistance programs for such benefits. Information obtained by  the  office of temporary and disability assistance under this clause shall not be disclosed, except to local social  services  districts  for purposes  of  establishing  or  verifying  the income and eligibility of applicants for, or recipients of, benefits under state public assistance programs.  (8) the office of vocational and educational services for  individuals with  disabilities of the education department for the evaluation of the effect  on  earnings  of  participants,  or  former   participants,   in employment  and training programs for which the office of vocational and educational services for individuals with disabilities of the  education department has reporting, monitoring or evaluating responsibilities.  (9)  the  commission for the blind for the evaluation of the effect on earnings of participants, or  former  participants,  in  employment  and training  programs for which the commission for the blind has reporting, monitoring or evaluating responsibilities.  (10) any other federal, state, or local governmental agency, including the state university of New York, the city university of New  York,  and any  of  their  constituent  units,  or  the  agents or contractors of a governmental agency, where such  information  is  to  be  used  for  (A) evaluation  of  program  performance,  including,  but  not  limited to, longitudinal outcome analysis of programs (including programs funded  by public  or  private  moneys  or  a  combination  thereof)  to the extent  permitted by federal law; (B) financial or other  analysis  required  by federal,  state,  or local law or regulation; (C) preparation of reports required by federal, state, or local law or regulation; (D) operation of public   programs  by  such  agencies,  their  agents,  contractors  and subcontractors,  whenever  the   commissioner   determines   that   such information  sharing  is  for  the  purpose  of improving the quality or delivery of program services or to create operational  efficiencies;  or (E)  establishment  of  common  case management systems between federal, state, or local agencies delivering or supporting workforce services for a shared customer base, wherever such common case management  system  is for   the   purpose   of   fostering   workforce  partnerships,  program coordination, inter-agency collaboration, improving program services, or creating  operational  efficiencies.  Any  redisclosure  of  information obtained by such agencies, their agents, or their contractors under this clause   shall   be  limited  to  tabulation  and  publication  of  such information in an aggregated statistical form, except  when  an  agency, its agent, its contractor or other agency must exchange such information for  an  authorized  purpose  as  provided  for in the written agreement required by 20 CFR  Part  603.  No  individual  identifying  information obtained  pursuant  to  paragraph  d  of subdivision one of this section shall be redisclosed in the course of the tabulation or publication.  As used  in this clause, the term "aggregated statistical form" shall mean, in the case of  information  regarding  individuals,  a  data  set  that includes  information  about  no fewer than ten individuals, and, in the case of employer information, a data set that includes information about no fewer than three employers, of which no one employer  comprises  more than  eighty  percent  of the aggregated data set. When the commissioner approves a requested disclosure of information for  the  purposes  of  a longitudinal  study, the commissioner shall allow such information to be used for a specified period of time  as  provided  for  in  the  written agreement  required  by 20 CFR Part 603. Such agreement may only provide for information to be used for a period of up to ten years  but  may  be renewed for additional periods of time.  (11) (A) Pursuant to clause ten of this subparagraph, the commissioner shall  electronically  post  in a place accessible by the general public (i) the minimum conditions for  granting  a  request  from  governmental agencies  for disclosure of information, (ii) a standard application for submitting requests for disclosure of unemployment insurance information in individually identifiable form in  accordance  with  paragraph  d  of subdivision  one  of  this section, in de-identified unit level form, or aggregated statistical form, (iii) the timeframe for information request determinations by the commissioner, such  that  within  twenty  business days  of  receiving  a request, the commissioner shall either approve or deny the request  or  ask  for  additional  information;  within  twenty business  days  of  receiving  a request for additional information, the requesting agency shall respond to the commissioner, and; within  thirty calendar  days of receiving the additional information, the commissioner shall provide a final approval  or  denial  of  the  request,  and  (iv) contact  information  for  assistance  with  requests  for disclosure of information.  (B) Any approval or denial pursuant to clause ten of this subparagraph shall be in writing. Denials shall identify the reason  or  category  of reason for the denial.  (C)  The commissioner shall issue guidelines regarding the development of agreements with respect to disclosures approved  pursuant  to  clause ten  of this subparagraph, and such guidelines shall include, but not be limited to, the process and timeframe for developing such agreements and  the terms therein consistent with 20 CFR  Part  603  and  other  federal regulations.   h.  Department  contractors, subcontractors, or agents. The department may disclose unemployment  insurance  information  to  its  contractors, subcontractors,  or  agents as the commissioner deems necessary to carry out the statutory functions of the department. Such disclosure shall  be consistent with the authorized purposes described in subdivision four of this  section  and  all  applicable  federal regulations, guidelines and policies.   i. Payment to the department for disclosure of requested  unemployment insurance  information. (1) Except as permitted under applicable federal law or regulation, or as otherwise authorized by agreement  between  the department   and   the   United  States  department  of  labor,  federal unemployment insurance grant funds shall not be used to pay for  any  of the  costs  incurred  by  the  department  in  processing and handling a request for disclosure  of  unemployment  information  made  under  this article.  Such costs shall be calculated, collected, and administered by the department consistent with applicable federal rules  and  guidelines and  shall  be  paid  in  advance of disclosure to the department by the entity requesting the information or by another party acting  on  behalf of such entity. Where the recipient is a public official, the department may accept payment of costs by way of reimbursement.  (2)  Costs  paid  under  this  paragraph  shall be income of the state unemployment insurance program and shall only be used as permitted under the provisions of applicable federal regulations or guidelines governing the assessment and expenditure of such costs.   4. Wage reporting information obtained  by  the  department  from  the state department of taxation and finance pursuant to subdivision four of section  one  hundred  seventy-one-a of the tax law, as added by chapter five hundred forty-five of the laws of nineteen  hundred  seventy-eight, and information obtained or derived from quarterly combined withholding, wage  reporting  and unemployment insurance returns required to be filed by employers pursuant to paragraph four of subsection (a) of section six hundred seventy-four of the tax law shall be considered confidential and shall be used for  the  administration  of  the  unemployment  insurance program,  employment  services program, federal and state employment and training programs, employment statistics and  labor  market  information programs, employer services program, worker protection programs, federal programs  for  which the department has administrative responsibility or for other purposes deemed appropriate by  the  commissioner  under  this chapter.  Such information shall not be disclosed to persons or agencies other than those considered  entitled  to  such  information  under  the social  security act or other federal law, or as provided in subdivision three of this section or when  such  disclosure  is  necessary  for  the proper   administration   of  the  department's  unemployment  insurance program, employment services program, employment and training  programs, worker  protection  programs,  federal programs for which the department has  administrative  responsibility  or  for   other   purposes   deemed appropriate   by  the  commissioner  under  this  chapter.  Any  reports concerning employment and training programs  submitted  to  a  state  or federal  agency  shall  also be submitted to the governor, the temporary president of the senate, the speaker of the assembly and the  chairs  of the labor committees in the senate and the assembly.   5.  Withholding  tax  information  obtained by the department from the state department of taxation and finance pursuant to subsection  (1)  of section  six  hundred  ninety-seven of the tax law shall be confidential and shall not be disclosed or redisclosed by any person or agency except in accordance with the provisions of subsections (e) and (l) of  section  six  hundred  ninety-seven  of  such  law.  When used for the purpose of evaluating  monitoring  or  reporting  on  the  department's  employment security  and  training  programs,  access  to such information shall be limited   to   that   which  concerns  individuals  who  applied  to  or participated in such programs.   7. The department shall notify all applicants to, and participants in, employment security and training programs for which the  department  has reporting,  monitoring  or  evaluating responsibilities that information obtained from the department of taxation and  finance  may  be  used  to evaluate program effectiveness of up to ten years after such application or participation, whichever is later.