STATE OF NEW YORK ________________________________________________________________________

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IN ASSEMBLY

April 29, 2022 ___________

Introduced by M. of A. JOYNER, BICHOTTE HERMELYN, REYES, SIMON, FALL, CARROLL, MITAYNES, MAMDANI, GALLAGHER, GOTTFRIED, SEAWRIGHT, TAYLOR, DINOWITZ, ANDERSON, COOK, CRUZ, ABBATE, LUCAS -- read once and referred to the Committee on Labor -- committee discharged, bill amended, ordered reprinted as amended and recommitted to said commit- tee

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. LBD15159-04-2

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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.

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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

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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

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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.