On June 3, 2022, the New York Legislature passed Senate Bill 8922, the Warehouse Worker Protection Act (WWPA), which, if enacted, would further regulate the working conditions of warehouse workers in New York State. As detailed below, the WWPA, following similar legislation in California, would restrict and regulate the use of labor-related “quotas” in warehouses. The WWPA will be delivered to Governor Hochul by the end of the calendar year and will become effective 60 days after signing. Governor Hocul has yet to decide whether she will sign the WWPA.
WWPA would create a new section 21-A of New York’s labor law, applying to “warehouse distribution centers” with more than 100 “non-exempt and non-administrative” employees at a single location, or more than 500 of these employees across several distribution centers in the state.1 WWPA broadly defines “quota” to include specified productivity speeds, quantified number of tasks, quantified amount of material, and defined time periods during which employee performance will be measured for purposes of continued employment. .
WWPA would require, among other things, that employees be provided with a written description of any work-related “quota” required by the employer, as well as specific details regarding the actions and timing of any quota, and the associated consequences in the event of a no respect. to reach such a quota. The employer-required written description of all quotas must be provided to employees upon hire or within 30 days of the effective date of WWPA, and within two business days of any quota changes . WWPA does not specify whether notice must be in writing or whether electronic notice may suffice, and does not require employees to sign or agree to such notice.
WWPA would further prevent warehouse employers from instituting a quota if it would prevent an employee from having a mandatory meal or rest period, including “reasonable time to and from the restroom.” The WWPA does not specify whether unionized employees and their employers may voluntarily agree, through collective bargaining, to institute quota requirements consistent with agreed-upon meal and rest periods.
WWPA would impose additional record-keeping requirements on employers covered by the law. Specifically, covered employers would be required to keep records of each employee’s “personal work speed data”, “aggregate work speed” for “similar employees” at the same establishment, and job descriptions/reviews. writings of quota employees were previously provided. . Covered employers would be required to keep these records throughout the employment relationship. Employers would be required to retain the last six months of the aforementioned records for a period of three years from the date of termination of employment of a covered employee. In addition to being available to New York State Department of Labor inspectors, current and former employees would have the right to request copies of these records for themselves as well as aggregate data for similar employees. .
WWPA would establish a rebuttable presumption of unlawful retaliation for any adverse action, including discipline or termination, taken within 90 days of an employee’s request for records under WWPA or a complaint of a perceived violation. of WWPA, including complaints made “in error but in good faith.” WWPA does not define “good faith” nor does it address the myriad of circumstances in which an employee’s employment could be discontinued for reasons entirely unrelated to a request for records or a complaint (even a baseless but “good faith” complaint) under the WWPA.
The New York commissioner of labor would be charged with the enforcement of the WWPA, including the power to issue orders to comply under section 218 of the New York labor law. The WWPA does not specify whether it creates a right of private civil action for enforcement, but does explicitly provide that the New York Attorney General may enforce the provisions of the WWPA through civil and criminal suits. Pursuant to Section 218 of the Labor Act, penalties for violations of WWPA, which include providing written descriptions of quotas to current and former employees, can be up to $1,000 for the first violation , $2,000 for the second offense and $3,000 for all subsequent offenses. offences. The WWPA would require the New York State Department of Labor to pass implementing regulations prior to the effective date of the WWPA. These regulations could resolve some of the ambiguities discussed above.
If enacted, the WWPA would create significant obligations for warehouse employers, and affected employers would be required to take the necessary steps to ensure compliance with the new law. Littler will continue to monitor the progress of this pending item.