STATE OF NEW YORK ________________________________________________________________________

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IN ASSEMBLY

April 29, 2022 ___________

Introduced by M. of A. JOYNER -- read once and referred to the Committee on Labor

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 25 depend upon these jobs to provide for their families and often see no 26 alternative but to prioritize quota compliance over their own safety. 27 These workers end up working faster than is healthy in order to keep 28 their jobs.

EXPLANATION--Matter in italics (underscored) is new; matter in brackets [] is old law to be omitted. LBD15159-02-2

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1 (f) Workplace injuries can take a terrible toll on workers, their 2 families and their communities, and can create substantial costs for 3 employers. According to the most recent data (2020) released by the 4 Bureau of Labor Statistics, the warehouse industry itself reports a rate 5 of serious work-related injuries involving lost time or restricted duty 6 (4.0 cases/100 full-time workers) that is more than twice the average 7 injury rates for all private industry (1.7 cases/100 full-time workers). 8 The most common types of work-related serious injury reported by employ- 9 ers in the warehouse sector are musculoskeletal injuries, which often 10 require workers to miss work and can force workers permanently out of 11 the job and even out of the workforce. 12 (g) Warehouse companies often require workers to perform fast paced 13 manual material handling tasks. These involve well-known risk factors 14 for serious injury such as rapid pace, repetitive forceful exertions 15 like lifting heavy packages, and awkward postures like twisting/bending, 16 and combinations thereof that are likely to cause musculoskeletal inju- 17 ries. Scientific evidence shows that effective ergonomic interventions, 18 such as reducing the pace, package weights and stressful postures, can 19 lower the incidence and severity of work-related musculoskeletal inju- 20 ries. The research is clear that the most effective method for reducing 21 or eliminating these risk factors is to implement an ergonomics program 22 that includes well-informed analysis of the worksite, implementation of 23 solutions to reduce the dangerous risk factors, professionally competent 24 medical management, effective worker training, and meaningful involve- 25 ment by workers and their representatives in all aspects of the program. 26 § 3. The labor law is amended by adding a new article 21-a to read as 27 follows: 28 ARTICLE 21-A 29 WAREHOUSE WORKER PROTECTION ACT 30 Section 780. Definitions. 31 781. Quotas. 32 782. Protection from quotas. 33 783. Time on task. 34 784. Right to request. 35 785. Injury reduction program. 36 786. Unlawful retaliation. 37 787. Subpoena. 38 788. Enforcement. 39 789. Private right of action. 40 790. Records. 41 791. Other powers. 42 § 780. Definitions. As used in this article: 43 1. "Defined time period" means any unit of time measurement equal to 44 or less than the duration of an employee's shift, and includes hours, 45 minutes, and seconds and any fraction thereof. 46 2. "Designated employee representative" means any employee represen- 47 tative, including but not limited to an authorized employee represen- 48 tative that has a collective bargaining relationship with the employer. 49 3. "Employee" means a nonexempt employee who works at a warehouse 50 distribution center. 51 4. (a) "Employee work speed data" means information an employer 52 collects, stores, analyzes, or interprets relating to an individual 53 employee's performance of a quota, including, but not limited to, quan- 54 tities of tasks performed, quantities of items or materials handled or 55 produced, rates or speeds of tasks performed, measurements or metrics of

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1 employee performance in relation to a quota, and time categorized as 2 performing tasks or not performing tasks. 3 (b) "Aggregated data" means information that an employer has combined 4 or collected together in summary or other form such that the data cannot 5 be identified with any individual. 6 5. "Employer" means a person who directly or indirectly, or through an 7 agent or any other person, including through the services of a third- 8 party employer, temporary services, or staffing agency, independent 9 contractor, or any similar entity, at any time in the prior twelve 10 months, employs or exercises control over the wages, hours, or working 11 conditions of fifty or more employees at a single warehouse distribution 12 center or five hundred or more employees at one or more warehouse 13 distribution centers in the state. 14 For the purposes of this subdivision: (a) all employees employed 15 directly or indirectly, or through an agent or any other person, as 16 described in the opening paragraph of this subdivision, as well as any 17 employee employed by a member of a controlled group of corporations of 18 which the employer is a member, shall be counted in determining the 19 number of employees employed at a single warehouse distribution center 20 or at one or more warehouse distribution centers in the state; and (b) 21 all agents or other persons, as described in the opening paragraph of 22 this subdivision, and all members of a controlled group of corporations 23 of which the employer is a member, shall be deemed to be employers and 24 shall be jointly and severally responsible for compliance with this 25 article. For purposes of this subdivision, the term "controlled group of 26 corporations" shall be defined as provided under Section 1563 of the 27 Internal Revenue Code, 26 U.S.C. section 1563, except that fifty 28 percent shall be substituted for eighty percent where eighty percent is 29 specified in that definition. 30 6. "Musculoskeletal injuries and disorders" means work related inju- 31 ries, or disorders, of the muscles, nerves, tendons, ligaments, joints, 32 cartilage of the upper and lower limbs, neck and lower back (including 33 spinal discs) that (a) are caused by sudden or sustained physical 34 exertion, or (b) are not the result of any instantaneous non-exertion 35 event, such as slips, trips, or falls. 36 7. "Person" means an individual, corporation, partnership, limited 37 partnership, limited liability partnership, limited liability company, 38 business trust, estate, trust, association, joint venture, agency, 39 instrumentality, or any other legal or commercial entity, whether domes- 40 tic or foreign. 41 8. "Qualified ergonomist" means an ergonomist who is able to demon- 42 strate proficiency in the core, minimum competencies of ergonomics and 43 injury prevention, as defined by the commissioner. Until the commission- 44 er defines such competencies and approves ergonomists in accordance with 45 such competencies, consultants approved by the commissioner under 12 46 CRR-NY 59 and 60 with a credential as a certified safety professional or 47 certified industrial hygienist shall be deemed to qualify as an ergonom- 48 ist. 49 9. "Quota" means a work standard which: 50 (a) an employee is assigned or required to perform: (i) at a specified 51 productivity speed; or a quantified number of tasks, or to handle or 52 produce a quantified amount of material, within a defined time period; 53 or 54 (b) an employee's actions are categorized between time performing 55 tasks and not performing tasks, and the employee's failure to complete a 56 task performance standard or recommendation may have an adverse impact

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1 on the employee's continued employment or the conditions of such employ- 2 ment. 3 10. "Warehouse distribution center" means an establishment as defined 4 by any of the following North American industry classification system 5 ("NAICS") codes, however such establishment is denominated: 6 (a) four hundred ninety-three for warehousing and storage; 7 (b) four hundred twenty-three for merchant wholesalers, durable goods; 8 (c) four hundred twenty-four for merchant wholesalers, nondurable 9 goods; 10 (d) four hundred fifty-four thousand one hundred ten for electronic 11 shopping and mail-order houses; or 12 (e) four hundred ninety-two thousand one hundred ten for couriers and 13 express delivery services. 14 § 781. Quotas. Each employer shall provide to each employee, upon 15 hire, or within thirty days of the effective date of this article, a 16 written description of each quota to which the employee is subject, 17 including the quantified number of tasks to be performed or materials to 18 be produced or handled, within the defined time period, and any poten- 19 tial adverse employment action that could result from failure to meet 20 the quota. Each time the quota changes thereafter, the employer shall 21 provide an updated written description of each quota to which the 22 employee is subject within two business days of such quota change. Each 23 time an employer takes an adverse employment action against an employee, 24 the employer shall provide that employee with the applicable quota for 25 the employee. 26 § 782. Protection from quotas. An employee shall not be required to 27 meet a quota that prevents compliance with meal or rest periods, use of 28 bathroom facilities, including reasonable travel time to and from bath- 29 room facilities, or increases the risks of musculoskeletal injuries and 30 disorders. An employer shall not take adverse employment action against 31 an employee for failure to meet a quota that does not allow a worker to 32 comply with meal and rest periods, or minimize the risks of musculosk- 33 eletal injuries and disorders, or for failure to meet a quota that has 34 not been disclosed to the employee pursuant to section seven hundred 35 eighty-one of this article. 36 § 783. Time on task. 1. Any actions taken by an employee to minimize 37 the risks of musculoskeletal injuries and disorders and comply with 38 requirements of the injury prevention program shall be considered time 39 on task and productive time for purposes of any quota or monitoring 40 system. 41 2. Notwithstanding subdivision one of this section, consistent with 42 existing law, paid and unpaid breaks shall not be considered productive 43 time for the purpose of any quota or monitoring system unless the 44 employee is required to remain on call. 45 § 784. Right to request. 1. (a) A current or former employee has the 46 right to request, and the employer shall provide at no cost to the 47 employee, a written description of each quota to which the employee is 48 subject, a copy of the employee's own personal work speed data and a 49 copy of the prior six months of aggregated work speed data for similar 50 employees at the same establishment. 51 (b) If a former employee requests a written description of the quotas 52 to which they were subject and a copy of their own personal work speed 53 data pursuant to paragraph (a) of this subdivision, the employer shall 54 provide six months of the former employee's quotas and personal work 55 speed data for the six months prior to the date of the employee's sepa- 56 ration from the employer.

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1 2. An employer that receives a written or oral request for information 2 pursuant to subdivision one of this section shall comply with the 3 request as soon as practicable, but no later than two business days 4 following the date of the request. 5 3. Nothing in this section shall require an employer to use quotas or 6 monitor work speed data. An employer that does not monitor this data has 7 no obligation to provide it. 8 § 785. Injury reduction program. Every employer subject to this 9 section shall establish and implement an injury reduction program 10 designed to identify and minimize the risks of musculoskeletal injuries 11 and disorders among workers involved in performing manual materials 12 handling tasks. The program shall include: worksite evaluation; control 13 of exposures, including pace, which have caused or have the potential to 14 cause musculoskeletal injuries and disorders; employee training; medical 15 management; and employee involvement. 16 1. The employer shall assure that each job, process, or operation of 17 work activity covered by this section or a representative number of such 18 jobs, processes, or operations of identical work activities shall have a 19 written work site evaluation by a qualified ergonomist for risk factors 20 which have or are likely to cause musculoskeletal injuries and disor- 21 ders. Such risk factors shall include, but are not limited to, rapid 22 pace, forceful exertions, repetitive motions, twisting, bending, and 23 awkward postures and combinations thereof that had caused or are likely 24 to cause musculoskeletal injuries and disorders. 25 (a) Any worksite evaluations shall also determine whether any employ- 26 ees exposed to such risk factors are subject to either personnel action 27 with the potential for adverse action, or adverse action or termination 28 themselves, arising in whole or in part from an employer's use of quotas 29 to determine employee assignments. 30 (b) All such worksite evaluations shall obtain recommendations from 31 workers who regularly perform those jobs on the possible risk factors 32 and any workplace changes that can reduce such risk factors. 33 (c) Copies of such worksite risk factor evaluations shall be made 34 available to workers and their representatives upon request, at no cost, 35 within one business day of such request. Workers and their represen- 36 tative shall be notified in writing of the results of the worksite eval- 37 uation. Employers shall maintain accessible copies of such evaluations 38 at locations within the warehouse and shall make such copies readily 39 available to workers. 40 (d) An initial worksite evaluation shall be conducted within three 41 months after the effective date of this article. Worksite evaluations 42 shall be reviewed and updated at least annually thereafter. A new analy- 43 sis of risk factors shall be conducted in accordance with the provisions 44 of the opening paragraph of this subdivision whenever a new job, proc- 45 ess, or operation is introduced which could increase the risk factors 46 for musculoskeletal injuries and disorders. Such new analysis shall be 47 conducted within thirty days of the creation or change of a job, process 48 or operation. 49 (e) Within three months of the effective date of this article, the 50 commissioner shall form a task force chaired by a recognized academic 51 leader in the field of ergonomics in New York state and including, but 52 not limited to, representatives from the warehouse workforce, labor 53 organizations active in the warehousing industry, and employers in the 54 industry, to recommend the core competencies required for the certif- 55 ication of qualified ergonomists. Within six months of the effective 56 date of this article, the commissioner shall adopt a standard and proc-

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1 ess for certifying qualified ergonomists based on the recommendations of 2 the task force. 3 2. The employer shall correct in a timely manner any risk factors 4 identified as having caused or being likely to cause musculoskeletal 5 injuries and disorders. For any corrections which require more than 6 thirty days to complete, the employer shall revise, as needed, and 7 provide a schedule for such proposed corrections. Such schedule shall be 8 included in the evaluations provided to workers and their represen- 9 tatives. 10 (a) Where the employer demonstrates that it is unable to eliminate 11 identified risk factors, the employer shall minimize the exposures to 12 the extent feasible. 13 (b) In reducing risk factors, the employer shall consider: 14 (i) engineering controls and redesigning work stations to change 15 shelving heights, provide adjustable fixtures or tool redesign; and 16 (ii) administrative controls, such as job rotation which reduces the 17 exposure to risk factors, reduced work pacing or additional work breaks. 18 (c) Employers shall maintain records of steps taken to eliminate or 19 reduce risk factors and shall make copies available to workers and their 20 representatives upon request. 21 3. All employers covered by this section shall provide injury 22 reduction training to all employees involved in performing manual mate- 23 rials handling jobs and tasks at the warehouse during normal work hours 24 and without suffering a loss of pay. Such training shall be provided in 25 a language and vocabulary that the workers understand and shall be 26 repeated annually. The training shall also be provided to the workers' 27 supervisors. Such training shall be in addition to the training required 28 under section twenty-seven-d of this chapter and shall include: 29 (a) The early symptoms of musculoskeletal injuries and disorders and 30 the importance of early detection; 31 (b) Musculoskeletal injury and disorder risk factors and exposures at 32 work, including the hazards posed by excessive rates of work; 33 (c) Methods to reduce risk factors for musculoskeletal injuries and 34 disorders, including both engineering controls and administrative 35 controls, such as limitations on work pace and increased scheduled and 36 unscheduled breaks; 37 (d) The employer's program to identify risk factors as required under 38 this section and prevent musculoskeletal injuries and disorders, includ- 39 ing the summary protocols for medical treatment approved by the employ- 40 er's medical consultant; 41 (e) The rights and function of workplace safety committees established 42 under section twenty-seven-d of this chapter and the rights of employees 43 to report any risk factors, other hazards, injuries or health and safety 44 concerns; and 45 (f) Training on the unlawful retaliation of any provision in this 46 section, including the disciplinary actions required when supervisors or 47 managers violate the law or policy, as well as the employer's policy 48 prohibiting any workplace discrimination. 49 4. Any on-site medical office or first aid station that sees workers 50 in warehouses covered by this section with symptoms of musculoskeletal 51 injuries and disorders shall be staffed with medical professionals oper- 52 ating within their legal scope of practice. 53 (a) Employers shall assure that staffing and the practice of any first 54 aid or medical station meets state requirements for physician super- 55 vision of nurses, emergency medical technicians or other non-physician 56 personnel.

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1 (b) In all warehouses where employers require that workers with signs 2 and symptoms of musculoskeletal injuries and disorders shall first be 3 seen by an on-site medical or first aid provider or have the approval of 4 the employer prior to being sent to a doctor, the employer shall consult 5 with a medical consultant who is licensed by New York state and board 6 certified in occupational medicine. 7 (i) The employer shall obtain from the medical consultant a written 8 evaluation of the medical management program and protocols followed in 9 the warehouse for identification and treatment of musculoskeletal inju- 10 ries and disorders and shall include recommendations to ensure compli- 11 ance with accepted medical practice of the staffing, supervision and 12 documentation of medical treatment protocols. 13 (ii) The employer shall obtain from the medical consultant a summary 14 of treatment protocols suitable for worker patients covering all aspects 15 of the medical management practices, from early detection of musculosk- 16 eletal injuries and disorders through evaluation by a qualified physi- 17 cian and physician provision of appropriate work restrictions in 18 languages understood by the employees. 19 (iii) The employer shall ensure that the medical consultant reviews 20 the previous medical consultant evaluation, related materials and proto- 21 cols on an annual basis, and recommends changes as appropriate. 22 (iv) The employer shall assure that all designated medical and first 23 aid providers have observed, in person, the jobs involving manual mate- 24 rials handling within the warehouse and all risk factors identified in 25 the evaluation conducted under the medical consultant evaluation. 26 (c) There shall be no unnecessary delays in the provision of adequate 27 medical care to workers who report injuries to the on-site medical 28 services. 29 (d) Each employer shall ensure that no supervisory or managerial 30 employee or other person discriminates or retaliates against any 31 current, former, or prospective employee or other person for reporting a 32 work-related injury or illness, or health and safety concern. 33 5. Employers shall assure that employees and their designated repre- 34 sentatives are consulted both before and during the development and 35 implementation of all aspects of the program. Where employees have 36 established a workplace safety committee in compliance with section 37 twenty-seven-d of this chapter, the employer shall assure that the 38 committee is consulted regarding the development and implementation of 39 all aspects of the injury reduction program. Any record created by the 40 employer according to this section shall be provided to the workplace 41 safety committee prior to consultation. All documents provided to 42 employees shall be provided in writing in English and in the language 43 identified by each employee as the primary language of such employee. 44 § 786. Unlawful retaliation. 1. No person, including but not limited 45 to an employer, his or her agent, or person acting as or on behalf of a 46 hiring entity, or the officer or agent of any entity, business, corpo- 47 ration, partnership, or limited liability company, shall discharge or in 48 any way retaliate, discriminate or take adverse action against any 49 person for exercising any rights conferred under this article, or for 50 being perceived as exercising rights conferred by this article, includ- 51 ing but not limited to: 52 (a) Initiating a request for information about a quota or personal 53 work speed data pursuant to paragraph (a) of subdivision one of section 54 seven hundred eighty-four of this article. 55 (b) Making a complaint related to a quota alleging any violation of 56 section seven hundred eighty-one, seven hundred eighty-two, seven

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1 hundred eighty-three, or seven hundred eighty-four of this article to 2 the commissioner, any other local, state, or federal governmental agency 3 or official, or the employer. 4 (c) Making a complaint related to section seven hundred eighty-five of 5 this article. 6 2. An employee need not explicitly refer to this article or the rights 7 enumerated herein to be protected from an adverse action. Protections of 8 this section shall apply to former employees and to employees who 9 mistakenly but in good faith allege violations of this article. 10 3. If a person takes adverse action against an employee within ninety 11 days of the employee's engaging or attempting to engage in activities 12 protected by this article, such conduct shall raise a rebuttable 13 presumption that the action is an adverse action in violation of this 14 article. Such presumption may be rebutted by clear and convincing 15 evidence that: (a) the action was taken for other permissible reasons; 16 and (b) the engaging or attempting to engage in activities protected by 17 this article was not a motivating factor in the adverse action. 18 § 787. Subpoena. Upon receiving a complaint regarding a violation of 19 this article, the commissioner may request or subpoena employer records 20 or data related to this article. 21 § 788. Enforcement. 1. The commissioner shall be authorized to enforce 22 the provisions of this article. 23 2. (a) Any employee or representative of employees who believes that 24 an employer may violate the requirements of this article or that an 25 imminent danger exists, may request an inspection by giving notice to 26 the commissioner of such violation or danger. Such notice and request 27 shall: 28 (i) be in writing, either physical or electronic; 29 (ii) set forth with reasonable particularity the grounds for the 30 notice; 31 (iii) be signed by the employee or representative of employees; 32 (iv) be provided by the commissioner to the employer or the person in 33 charge no later than the time of inspection, except that the name of the 34 person giving notice to the commissioner and the names of individual 35 employees or representatives of employees shall be withheld unless such 36 employees or representatives have provided express written permission 37 for such information to be shared. 38 (b) Inspections pursuant to this subdivision shall be made within 39 three days of receipt of notice by the commissioner. 40 3. A representative of the employer and a designated employee repre- 41 sentative shall be given the opportunity to accompany the commissioner 42 during an inspection for the purpose of aiding such inspection. A labor 43 union having a collective bargaining relationship with the employer 44 shall be considered an employee representative for the purposes of this 45 section. Where there is no designated employee representative, the 46 commissioner shall consult with a reasonable number of employees 47 concerning matters of safety and health in the workplace. 48 4. The authority of the commissioner to inspect premises pursuant to 49 an employee complaint shall not be limited to the alleged violation 50 contained in such complaint. The commissioner may inspect any other area 51 of the premises in which he or she has reason to believe that a 52 violation of this article exists. 53 5. No employee or designated employee representative who accompanies 54 the commissioner on an inspection shall suffer any reduction in wages as 55 a result of his or her participation in such inspection.

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1 6. The commissioner may, upon his or her own initiative, conduct an 2 inspection of any premises occupied by an employer if the commissioner 3 has reason to believe that a violation of this article has occurred or 4 if the commissioner has a basis for such inspection. 5 7. Notwithstanding any other provisions of law, when a request for an 6 inspection has been made in a situation where there is an allegation of 7 an imminent danger such that an employee would be subjecting himself or 8 herself to serious injury or death because of the hazardous condition in 9 the workplace, the inspection shall be carried out immediately. 10 8. If the commissioner determines that an employer has violated a 11 provision of this article, or a safety or health standard or regulation 12 promulgated pursuant to this article, he or she shall, within six months 13 of becoming aware of such violation, issue to the employer an order to 14 comply which shall describe particularly the nature of the violation, 15 including a reference to the provision of the section, standard, regu- 16 lation or order alleged to have been violated, fix a reasonable time for 17 compliance, and establish a penalty equivalent to the appropriate penal- 18 ties required pursuant to section 17 of the federal Occupational Safety 19 and Health Act (29 USC 666). An employer who fails to correct a non-ser- 20 ious violation by the time fixed for compliance may be assessed a civil 21 penalty pursuant to 29 USC 666 per day until the violation is corrected. 22 An employer who fails to correct a serious violation by the time fixed 23 for compliance may be assessed a civil penalty pursuant to 29 USC 666 24 until the violation is corrected. A serious violation shall be deemed to 25 exist in a place of employment if there is a substantial probability 26 that death or serious physical harm could result from a condition which 27 exists or from one or more practices, means, methods, operations, or 28 processes which have been adopted or are in use in such place of employ- 29 ment unless the employer did not, and could not with the exercise of 30 reasonable diligence, know of the presence of the violation. A non-seri- 31 ous violation shall be defined as any violation that does not fall under 32 the definition of serious violation. 33 9. Where the commissioner issues to an employer an order to comply, 34 the employer shall post such order or a copy thereof in a conspicuous 35 place at or near each place of violation cited in the order. The order 36 shall be placed where it is clearly visible to affected employees and 37 copies shall be provided to employees, on request, and to the designated 38 representatives of all affected employees. The commissioner shall make 39 such order available to employee representatives and provide a plain 40 English summary of the order to all workers. 41 10. Any employer or other party affected by a determination of the 42 commissioner issued pursuant to this section, including affected employ- 43 ees and their designated representatives, may petition the industrial 44 board of appeals for review of such determination in accordance with 45 section one hundred one of this chapter. Judicial review of the decision 46 of the industrial board of appeals may be obtained by any party affected 47 by such decision by commencing a proceeding pursuant to article seven- 48 ty-eight of the civil practice law and rules within sixty days after 49 such decision is issued. An appeal of any violation classified and cited 50 as serious, willful, repeated serious violation, or failure to abate a 51 serious violation shall not stay abatement dates and requirements. 52 Employees affected by the violation covered by such determination shall 53 be granted status as parties to: participate in the board's proceedings; 54 review any aspect of the commissioner's determinations; and request of 55 the issuance of subpoenas to compel the attendance of witnesses, 56 production of documents, permission to enter upon land, interrogatories

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1 and depositions from affected employers and from the department pursuant 2 to section one hundred of this chapter. The board shall grant such 3 requests except that requests for depositions shall be granted by the 4 board upon a request stating good and just reasons. 5 11. If the time for compliance with an order of the commissioner 6 issued pursuant to this section has elapsed and the employer has not 7 complied with the provisions of the order, the commissioner shall seek 8 judicial enforcement of such order by commencing a proceeding pursuant 9 to article seventy-eight of the civil practice law and rules. 10 12. (a) The state supreme court shall have jurisdiction, upon petition 11 of the commissioner, pursuant to the civil practice law and rules to 12 restrain any violations, conditions or practices prohibited by this 13 article in any employer covered by this article which are such that a 14 danger exists which could reasonably be expected to cause death or seri- 15 ous physical harm immediately or before the imminence of such danger can 16 be eliminated through the abatement procedures otherwise provided for by 17 this article. Such proceeding shall be brought in the county in which 18 the violation is alleged to exist. Any order issued under this section 19 may require such steps to be taken as may be necessary to avoid, correct 20 or remove such imminent danger and prohibit the employment or presence 21 of any individual in locations or under conditions where such imminent 22 danger exists, except individuals whose presence is necessary to avoid, 23 correct, or remove such imminent danger or to maintain the capacity of a 24 continuous process operation to resume normal operations without a 25 complete cessation of operations, or where a cessation of operations is 26 necessary, to permit such to be accomplished in a safe and orderly 27 manner. The employer may contest such order pursuant to the civil prac- 28 tice law and rules. 29 (b) Whenever and as soon as an inspector concludes that conditions or 30 practices described in paragraph (a) of this subdivision exist in any 31 place of employment covered by this article, the inspector shall inform 32 the affected employees and employers of the danger and of the recommen- 33 dation to the commissioner that relief be sought. 34 (c) If the commissioner fails to seek relief under this subdivision 35 within forty-eight hours of being notified of such condition, any 36 employee who may be injured by reason of such failure, or the authorized 37 employee representative of such employee, may seek injunctive relief as 38 provided in paragraph (a) of this subdivision. 39 13. The commissioner shall provide a report to the legislature one 40 year after the effective date of this section, and annually thereafter. 41 The report shall include all relevant information regarding implementa- 42 tion and enforcement of this article, including but not limited to the 43 number of claims filed with the commissioner under this article, data on 44 warehouse production quotas in warehouses in which annual employee inju- 45 ry rates are above the industry average, and the number of investi- 46 gations undertaken and enforcement actions initiated, per employer and 47 per worksite. 48 14. If a particular worksite or employer is found to have an annual 49 employee injury rate at least one and one-half times as high as the 50 warehousing industry's average annual injury rate, the commissioner 51 shall conduct an investigation of violations pursuant to this article. 52 15. The commissioner shall have the authority to adopt rules and regu- 53 lations relating to the procedures for an employee to make a complaint 54 alleging a violation of this article. 55 16. In any successful action brought by the commissioner to enforce 56 this article, the court may grant injunctive relief in order to obtain

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1 compliance with this article and shall award costs and reasonable attor- 2 ney's fees. 3 § 789. Private right of action. A current or former employee or his or 4 her representative may bring an action for injunctive relief to obtain 5 compliance with this article and may, upon prevailing in the action, 6 recover costs and reasonable attorney's fees in such action. In any 7 action involving a quota that prevented the compliance with applicable 8 regulations on workplace safety and health or meal or rest break 9 requirements, the injunctive relief shall be limited to suspension of 10 the quota and restitution and injunctive relief to address any retali- 11 ation or other adverse action taken by the employer in relation to the 12 complaint or its enforcement. In any action involving a retaliation in 13 violation of section seven hundred eighty-six of this article, in addi- 14 tion to the relief authorized above, a prevailing current or former 15 employee or his or her representative shall be awarded damages equal to 16 the greater of ten thousand dollars or three times the actual damages, 17 including, but not limited to, unpaid wages and benefits. 18 § 790. Records. Any records collected by the state in any investi- 19 gations under this article shall be made public, without any restriction 20 regarding confidentiality, other than a restriction on the release of 21 personally identifiable information for individual non-supervisory 22 employees. All records maintained by the employer under this article 23 shall be made freely available to employees and their representatives on 24 request, within two business days of such request, at no cost to employ- 25 ees or their representatives. 26 § 791. Other powers. The attorney general, either upon his or her own 27 complaint or the complaint of any person acting for themselves or the 28 general public, has the authority to prosecute actions, either civil or 29 criminal, for violations of this article, or to enforce the provisions 30 thereof independently and without specific direction of the commission- 31 er. 32 § 4. Severability. If any provision of this act, or any application of 33 any provision of this act, is held to be invalid, that shall not affect 34 the validity or effectiveness of any other provision of this act, or of 35 any other application of any provision of this act, which can be given 36 effect without that provision or application; and to that end, the 37 provisions and applications of this act are severable. 38 § 5. This act shall take effect on the sixtieth day after it shall 39 have become a law.