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.
UPDATE: On December 21, 2022, Governor Hochul signed Senate Bill 8922.
On June 3, 2022, the New York Legislature passed Senate Bill 8922, the Warehouse Worker Protection Act (WWPA), which if signed into law, would significantly 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 work-related “quotas” in warehouse settings. The WWPA will be delivered to Governor Hochul by the end of the calendar year and would take effect 60 days after signing. Governor Hochul has not yet opined on whether she will sign the WWPA.
The WWPA would create a new Article 21-A of the New York Labor Law, applying to “warehouse distribution centers” with more than 100 “non-exempt and non-administrative” employees at single site, or more than 500 of such employees across multiple distribution centers in the state.1 The WWPA broadly defines “quota” to include specified productivity speeds, quantified number of tasks, quantified amount of material, and defined time periods for which the employee’s performance will be measured for the purposes of continued employment.
The WWPA would require, among other things, that employees be provided with a written description of any work-related “quota” required by the employer, along with specific details regarding the metrics and timing of any such quota, and the associated consequences for failing to meet any such quota. The employer’s required written description of any quotas must be provided to employees upon hire or within 30 days of the WWPA’s effective date, and within two business days of any quota changes. The WWPA does not state whether notice must be given in writing or if electronic notice may suffice, and does not require that employees sign or acknowledge such notice.
The WWPA would further restrict warehouse employers from instituting a quota if it would prevent an employee from taking a required meal or rest period, including “reasonable time to and from bathroom facilities.” The WWPA does not address whether unionized employees and their employers can voluntarily agree, through collective bargaining, to institute quota requirements consistent with agreed-upon meal and rest periods.
The WWPA would impose additional recordkeeping requirements on employers covered by the law. Specifically, covered employers would be required to keep records of each employee’s “own personal work speed data,” the “aggregated work speed” for “similar employees” at the same establishment, and the written descriptions/notice of the quota employees previously were provided. Covered employers would be required to keep such records throughout the employment relationship. Employers would be required to keep the final six months of the foregoing records for a three-year period from the date of a covered employee’s separation from employment. In addition to being available to inspectors at the New York State Department of Labor, current and former employees would have the right to request copies of such records for themselves as well as aggregated data for similar employees.
The WWPA would establish a rebuttable presumption of unlawful retaliation for any adverse actions, including discipline or termination, taken within 90 days of an employee’s request for records under the WWPA or complaint of a perceived violation of the WWPA, including complaints made “mistakenly but in good faith.” The WWPA does not define “good faith,” nor does it address the myriad circumstances where an employee’s employment might be severed for reasons wholly unrelated to a request for records or a complaint (even a meritless but “good faith” complaint) under the WWPA.
The New York Labor Commissioner would be charged with 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 address whether it creates a civil private right of action for enforcement, but explicitly provides that the New York Attorney General may enforce the provisions of the WWPA through both civil and criminal prosecutions. Per Section 218 of the Labor Law, penalties for violations of the WWPA, which include providing written descriptions of quotas to both current and former employees, range from up to $1,000 for the first violation, $2,000 for the second violation, and $3,000 for all subsequent violations. The WWPA would require the New York State Department of Labor to adopt implementing regulations prior to the WWPA’s effective date. Those regulations might address some of the ambiguities discussed above.
If enacted, the WWPA would create significant obligations on warehouse employers, and covered employers would be required to take necessary steps to ensure compliance with the new law. Littler will continue to track developments on this pending item.
1 The WWPA defines “Warehouse Distribution Center” in accordance with the codifications provided under the North American Industry Classification System (NAICS).