Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.
In June of 2022, the New York legislature passed the Warehouse Worker Protection Act (WWPA) (A10020/S8922), which Governor Hochul signed into law on December 21, 2022. This legislation followed similar legislation in California that regulates the use of work-related “quotas” in warehouse settings. While the WWPA initially went into effect on February 19, 2023, the governor signed a subsequent bill (A1000/S851) on March 3, 2023 (the “Chapter Amendment”). This new law, arising from an agreement between the Senate and Assembly to secure the governor’s signature on the WWPA, amended the underlying bill that adopted the WWPA. Most notably, the Chapter Amendment extended the effective date from 30 days to 180 days from the WWPA’s original February 19, 2023 enactment to June 19, 2023, and significantly amended several provisions of the WWPA as follows:
The Chapter Amendment revised a number of definitions set forth in WWPA, most notably:
- Employee was amended to clarify that the WWPA applies only to non-exempt employees under the state overtime law, and to exclude “Drivers or couriers to or from a warehouse distribution center.”
- Employer was amended to increase the threshold for coverage by the WWPA for multiple warehouses across the state from 500 to 1,000 employees in the aggregate. The threshold for coverage at a single site remains the same, at 100 employees.
- Warehouse distribution center was amended to exclude Farm Product Warehouses.
The WWPA requires that covered employers provide a written description to employees regarding any quota upon hire or within 30 days of the WWPA’s effective date, and within two business days of any quota changes. The delayed effective date of the WWPA under the Chapter Amendment means that the deadline for notices is currently set at July 19, 2023. The Chapter Amendment requires further that notice be given “in the language identified by each employee as the primary language of such employee,” and it is unclear if this requirement will be limited to a certain number of languages, or if the state will publish model forms to assist with compliance.
The Chapter Amendment repeals many of the recordkeeping requirements, and replaces them with a three-year recordkeeping requirement for “contemporaneous, true, and accurate records to ensure compliance with employee or commissioner requests for data.” Although not defined in the WWPA, this likely includes descriptions of the quotas, personal work speed data, and aggregate work speed data.
Right to Inspect
The Chapter Amendment clarified the employee’s right to inspect quota records in several notable ways, including:
- The time for employers to respond to employee requests for records was extended from two business days to 14 calendar days.
- Former employees are limited to one request for records under the WWPA.
- Employer responses to requests for descriptions of quotas and work speed data are required to be provided in the requesting employee’s primary language.
The Chapter Amendment replaces the retaliation provisions in the WWPA with a “rebuttable presumption of unlawful retaliation” for adverse actions taken against employees within 90 days of initiating a request for quota data or making a complaint relating to the WWPA. No further specificity or guidance on this new “rebuttable presumption” is provided in the Chapter Amendment, and the effect that it will have on retaliation claims is unclear.
The Chapter Amendment clarifies that the New York State Department of Labor (NYSDOL) may issue civil penalties “in addition to” any other penalties, and amends Section 218 of the Labor Law to allow NYSDOL to issue Orders to Comply.
The Chapter Amendment repeals the mandatory requirement that NYSDOL adopt regulations, in favor of a permitting but not requiring such regulations, but NYSDOL’s authority to adopt regulations ahead of the effective date of the WWPA was also specifically provided for in the Chapter Amendment, meaning that NYSDOL is able to begin the regulatory process prior to the new effective date of the WWPA.
Littler will continue to track developments on this pending item.