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S08922 Summary:

Add Art 21-A §§780 - 788, Lab L
Establishes the warehouse worker protection act; requires employers to provide a written description of quotas to which employees are subject and states that employees shall not be required to meet quotas that prevent compliance with meal or rest periods, or use of bathroom facilities.
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S08922 Text:

                STATE OF NEW YORK
                    IN SENATE
                                     April 28, 2022
        Introduced   by   Sens.   RAMOS,  BAILEY,  CLEARE,  GAUGHRAN,  GIANARIS,
          NICK, RIVERA, SALAZAR, SAVINO, SEPULVEDA --  read  twice  and  ordered
          printed, and when printed to be committed to the Committee on Labor --
          committee  discharged,  bill amended, ordered reprinted as amended and
          recommitted to said committee

        AN ACT to amend the labor law, in relation to establishing the warehouse
          worker protection act
          The People of the State of New York, represented in Senate and  Assem-
        bly, do enact as follows:
     1    Section  1. This act shall be known and may be cited as the "warehouse
     2  worker protection act".
     3    § 2. Legislative findings. The legislature finds and declares that:
     4    (a) The rapid growth of just-in-time logistics and same- and  next-day
     5  consumer  package delivery, and advances in technology used for tracking
     6  employee productivity, have led to a rise in the number of warehouse and
     7  distribution center workers who are subject to quantified work quotas.
     8    (b) Warehouse and distribution center employees who  work  under  such
     9  quotas  are  expected  to  complete  a quantified number of tasks within
    10  specific time periods, often measured down to the minute or second,  and
    11  face  adverse employment action, including suspension or termination, if
    12  they fail to do so.
    13    (c) Those quotas generally do not allow for  workers  to  comply  with
    14  safety  guidelines  or to recover from strenuous activity during produc-
    15  tive work time, leaving warehouse and distribution center employees  who
    16  work under them at high risk of injury and illness.
    17    (d) The quotas under which warehouse and distribution center employees
    18  regularly  work  also  affect their compensation. Warehouse and distrib-
    19  ution center employees who work under a quota may not receive  the  full
    20  benefit  of minimum wages if their quota is increased to make up for the
    21  direct or indirect effect of a minimum-wage increase.
    22    (e) Quotas in occupations that are already physically demanding incen-
    23  tivize unsafe work, resulting in an increase in injuries. The  workforce
    24  in  warehouse  and logistics is largely comprised of people of color who
         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.

        S. 8922--A                          2
     1  depend upon these jobs to provide for their families and  often  see  no
     2  alternative  but  to  prioritize quota compliance over their own safety.
     3  These workers end up working faster than is healthy  in  order  to  keep
     4  their jobs.
     5    (f)  Workplace  injuries  can  take  a terrible toll on workers, their
     6  families and their communities, and can  create  substantial  costs  for
     7  employers.  According  to  the  most  recent data (2020) released by the
     8  Bureau of Labor Statistics, the warehouse industry itself reports a rate
     9  of serious work-related injuries involving lost time or restricted  duty
    10  (4.0  cases/100  full-time  workers) that is more than twice the average
    11  injury rates for all private industry (1.7 cases/100 full-time workers).
    12  The most common types of work-related serious injury reported by employ-
    13  ers in the warehouse sector are musculoskeletal  injuries,  which  often
    14  require  workers  to  miss work and can force workers permanently out of
    15  the job and even out of the workforce.
    16    § 3. The labor law is amended by adding a new article 21-A to read  as
    17  follows:
    18                                ARTICLE 21-A
    19                       WAREHOUSE WORKER PROTECTION ACT
    20  Section 780. Definitions.
    21          781. Quotas.
    22          782. Protection from quotas.
    23          783. Time on task.
    24          784. Recordkeeping.
    25          785. Right to request.
    26          786. Unlawful retaliation.
    27          787. Enforcement.
    28          788. Other powers.
    29    § 780. Definitions. As used in this article:
    30    1.  "Defined  time period" means any unit of time measurement equal to
    31  or less than the duration of an employee's shift,  and  includes  hours,
    32  minutes, and seconds and any fraction thereof.
    33    2.  "Designated  employee representative" means any employee represen-
    34  tative, including but not limited to an  authorized  employee  represen-
    35  tative that has a collective bargaining relationship with the employer.
    36    3.  "Employee"  means  a nonexempt and non-administrative employee who
    37  works at a warehouse distribution center and is subject to  a  quota  as
    38  defined in this section.
    39    4.  (a)  "Employee  work  speed  data"  means  information an employer
    40  collects, stores, analyzes, or  interprets  relating  to  an  individual
    41  employee's  performance of a quota, including, but not limited to, quan-
    42  tities of tasks performed, quantities of items or materials  handled  or
    43  produced, rates or speeds of tasks performed, measurements or metrics of
    44  employee  performance  in  relation  to a quota, and time categorized as
    45  performing tasks or not performing tasks.
    46    (b) "Aggregated data" means information that an employer has  combined
    47  or collected together in summary or other form such that the data cannot
    48  be identified with any individual.
    49    5. "Employer" means a person who directly or indirectly, or through an
    50  agent  or  any  other person, including through the services of a third-
    51  party employer, temporary  services,  or  staffing  agency,  independent
    52  contractor,  or  any  similar  entity,  at  any time in the prior twelve
    53  months, employs or exercises control over the wages, hours,  or  working
    54  conditions  of  one  hundred  or  more  employees  at a single warehouse
    55  distribution center or five hundred or more employees  at  one  or  more
    56  warehouse distribution centers in the state.

        S. 8922--A                          3
     1    For  the  purposes  of  this  subdivision:  (a) all employees employed
     2  directly or indirectly, or through an agent  or  any  other  person,  as
     3  described  in  the opening paragraph of this subdivision, as well as any
     4  employee employed by a member of a controlled group of  corporations  of
     5  which  the  employer  is  a  member, shall be counted in determining the
     6  number of employees employed at a single warehouse  distribution  center
     7  or  at  one or more warehouse distribution centers in the state; and (b)
     8  all agents or other persons, as described in the  opening  paragraph  of
     9  this  subdivision, and all members of a controlled group of corporations
    10  of which the employer is a member, shall be deemed to be  employers  and
    11  shall  be  jointly  and  severally  responsible for compliance with this
    12  article. For purposes of this subdivision, the term "controlled group of
    13  corporations" shall be defined as provided under  Section  1563  of  the
    14  Internal  Revenue  Code,  26  U.S.C.    section  1563, except that fifty
    15  percent shall be substituted for eighty percent where eighty percent  is
    16  specified in that definition.
    17    6.  "Person"  means  an  individual, corporation, partnership, limited
    18  partnership, limited liability partnership, limited  liability  company,
    19  business  trust,  estate,  trust,  association,  joint  venture, agency,
    20  instrumentality, or any other legal or commercial entity, whether domes-
    21  tic or foreign.
    22    7. "Quota" means a work standard which:
    23    (a) an employee is assigned or required to perform: (i) at a specified
    24  productivity speed; or a quantified number of tasks,  or  to  handle  or
    25  produce  a  quantified amount of material, within a defined time period;
    26  or
    27    (b) an employee's actions  are  categorized  between  time  performing
    28  tasks and not performing tasks, and the employee's failure to complete a
    29  task  performance  standard or recommendation may have an adverse impact
    30  on the employee's continued employment or the conditions of such employ-
    31  ment.
    32    8. "Warehouse distribution center" means an establishment  as  defined
    33  by  any  of  the following North American industry classification system
    34  ("NAICS") codes, however such establishment is denominated:
    35    (a) four hundred ninety-three for warehousing and storage;
    36    (b) four hundred twenty-three for merchant wholesalers, durable goods;
    37    (c) four hundred  twenty-four  for  merchant  wholesalers,  nondurable
    38  goods;
    39    (d)  four  hundred  fifty-four thousand one hundred ten for electronic
    40  shopping and mail-order houses; or
    41    (e) four hundred ninety-two thousand one hundred ten for couriers  and
    42  express delivery services.
    43    §  781.  Quotas.  Each  employer  shall provide to each employee, upon
    44  hire, or within thirty days of the effective date  of  this  article,  a
    45  written  description  of  each  quota  to which the employee is subject,
    46  including the quantified number of tasks to be performed or materials to
    47  be produced or handled, within the defined time period, and  any  poten-
    48  tial  adverse  employment  action that could result from failure to meet
    49  the quota. Each time the quota changes thereafter,  the  employer  shall
    50  provide  an  updated  written  description  of  each  quota to which the
    51  employee is subject within two business days of such quota change.  Each
    52  time an employer takes an adverse employment action against an employee,
    53  the employer shall provide that employee with the applicable  quota  for
    54  the employee.
    55    §  782.  Protection  from quotas. An employee shall not be required to
    56  meet a quota that prevents compliance with meal or rest periods  or  use

        S. 8922--A                          4
     1  of  bathroom  facilities,  including  reasonable travel time to and from
     2  bathroom facilities.   An employer shall  not  take  adverse  employment
     3  action  against  an  employee  for failure to meet a quota that does not
     4  allow  a  worker  to comply with meal and rest periods or for failure to
     5  meet a quota that has not been disclosed to  the  employee  pursuant  to
     6  section seven hundred eighty-one of this article.
     7    §  783.  Time on task.   Consistent with existing law, paid and unpaid
     8  breaks shall not be considered productive time for the  purpose  of  any
     9  quota  or monitoring system unless the employee is required to remain on
    10  call.
    11    § 784. Recordkeeping. 1. Each employer shall establish, maintain,  and
    12  preserve  contemporaneous,  true, and accurate records of the following:
    13  (a) each employee's own personal work speed  data;  (b)  the  aggregated
    14  work speed data for similar employees at the same establishment; and (c)
    15  the  written descriptions of the quota such employee was provided pursu-
    16  ant to section seven hundred eighty-one of this  article.  Such  records
    17  shall  be  maintained  and  preserved  throughout  the  duration of each
    18  employee's period of employment and made available to  the  commissioner
    19  upon request.
    20    2.  Subsequent  to  any  employee's separation from the employer, such
    21  records relating to the six month  period  prior  to  the  date  of  the
    22  employee's  separation from the employer shall be preserved for a period
    23  of time not less than three years subsequent to the date of such employ-
    24  ee's separation and made available to  the  commissioner  upon  request.
    25  Nothing  in  this section shall require an employer to keep such records
    26  if such employer does not use quotas as defined in this article or moni-
    27  tor work speed data.
    28    § 785. Right to request.   1. A current  employee  has  the  right  to
    29  request  a  written  description  of each quota to which the employee is
    30  subject, a copy of the employee's own personal work speed  data,  and  a
    31  copy  of  the prior six months of aggregated work speed data for similar
    32  employees at the same establishment.
    33    2. A former employee has the right  to  request,  within  three  years
    34  subsequent  to  the  date  of his or her separation from the employer, a
    35  written description of the quota to which they were subject  as  of  the
    36  date  of  their  separation,  a copy of the employee's own personal work
    37  speed data for the six months prior to their date of separation,  and  a
    38  copy  of  aggregated  work  speed data for similar employees at the same
    39  establishment for the six months prior to their date of separation.
    40    3. Such requested records pursuant to this section shall  be  provided
    41  at no cost to the current or former employee.
    42    4.  The employer shall provide such requested records pursuant to this
    43  section  as  soon  as  practicable,  provided  that  requested   written
    44  descriptions  of  the quota shall be provided no later than two business
    45  days following the date of the receipt  of  the  request  and  requested
    46  personal  work  speed  data  and  aggregated  work  speed  data shall be
    47  provided no later than seven business days following  the  date  of  the
    48  receipt of the request.
    49    5.  Nothing in this section shall require an employer to use quotas as
    50  defined in this article or monitor work speed  data.  An  employer  that
    51  does not monitor this data has no obligation to provide it.
    52    §  786.  Unlawful retaliation. 1. No person, including but not limited
    53  to an employer, his or her agent, or person acting as or on behalf of  a
    54  hiring  entity,  or the officer or agent of any entity, business, corpo-
    55  ration, partnership, or limited liability company, shall discharge or in
    56  any way retaliate, discriminate  or  take  adverse  action  against  any

        S. 8922--A                          5
     1  person  for  exercising  any rights conferred under this article, or for
     2  being perceived as exercising rights conferred by this article,  includ-
     3  ing but not limited to:
     4    (a)  Initiating  a  request  for information about a quota or personal
     5  work speed data pursuant to subdivision one  of  section  seven  hundred
     6  eighty-five of this article.
     7    (b)  Making  a  complaint related to a quota alleging any violation of
     8  section  seven  hundred  eighty-one,  seven  hundred  eighty-two,  seven
     9  hundred  eighty-three,  or  seven hundred eighty-five of this article to
    10  the commissioner, any other local, state, or federal governmental agency
    11  or official, or the employer.
    12    2. An employee need not explicitly refer to this article or the rights
    13  enumerated herein to be protected from an adverse action. Protections of
    14  this section shall apply  to  former  employees  and  to  employees  who
    15  mistakenly but in good faith allege violations of this article.
    16    3.  If a person takes adverse action against an employee within ninety
    17  days of the employee's engaging or attempting to  engage  in  activities
    18  protected  by  this  article,  such  conduct  shall  raise  a rebuttable
    19  presumption that the action is an adverse action in  violation  of  this
    20  article.  Such  presumption  may  be  rebutted  by  clear and convincing
    21  evidence that: (a) the action was taken for other  permissible  reasons;
    22  and  (b) the engaging or attempting to engage in activities protected by
    23  this article was not a motivating factor in the adverse action.
    24    § 787. Enforcement.   The commissioner shall  adopt  rules  and  regu-
    25  lations  implementing  the provisions of this article.  The commissioner
    26  shall be authorized to enforce the provisions of  this  article  and  to
    27  assess  civil penalties in a manner consistent with sections two hundred
    28  thirteen, two hundred fifteen and two hundred eighteen of this chapter.
    29    § 788. Other powers. The attorney general, either upon his or her  own
    30  complaint  or  the  complaint of any person acting for themselves or the
    31  general public, has the authority to prosecute actions, either civil  or
    32  criminal,  for  violations of this article, or to enforce the provisions
    33  thereof independently and without specific direction of the  commission-
    34  er.
    35    § 4. Severability. If any provision of this act, or any application of
    36  any  provision of this act, is held to be invalid, that shall not affect
    37  the validity or effectiveness of any other provision of this act, or  of
    38  any  other  application of any provision of this act, which can be given
    39  effect without that provision or  application;  and  to  that  end,  the
    40  provisions and applications of this act are severable.
    41    §  5.  This  act  shall take effect on the sixtieth day after it shall
    42  have become a law.
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