On December 21, 2022, NY Governor Kathy Hochul signed into law the Warehouse Worker Protection Act (“the Act’), which will be effective February 19, 2023. As noted in Governor Hochul’s press release announcing the Act, a major driving force behind the legislation was organized labor, including the Teamsters and the Retail, Wholesale and Department Store Union.
The Act amends the New York Labor Law by adding a new Article 21-a, which sets a number of broad definitions, including who constitutes an “employer” of workers covered by the law. The Act will be applicable to any employer that employed: (1) 100 or more employees at a single warehouse distribution center; or (2) 500 or more employees at one or more warehouse distribution centers within the State of New York during the prior 12-month period. This “100” or “500” employee threshold number includes both direct employees as well as those that are employed through any third-party agency or independent contractor, and even those employed by a member of a controlled group of corporations, so long as the employer has control over wages, hours, or working conditions. The Act makes all such entities jointly and severally liable for any violations of the law.
Moreover, the Act defines “quota” as a work standard that an employee is assigned or required to perform and could take the form of a specified productivity speed, number of tasks to be performed or number of widgets to be produced within a set period, or the performance or non-performance of required tasks that may have a negative or adverse impact on the employee’s continued employment or on existing working conditions.
Given these definitions, the Act requires that employers provide employees a written description of each quota to which their employment is subject upon hire (or within 30 days of February 19, 2023). This communication must spell out what the “quota” or expectation is, including the number of tasks to be performed or materials produced within a specified period and what, if any, adverse employment action(s) may result from failure to meet that threshold. If and when that quota changes, an employer has two business days to provide an updated notification to employees of its revised expectation. An employer will also now be required to provide this written communication to employees again each time it takes any adverse employment action against an employee related to this quota.
The Act also provides a restriction on use of quotas in certain circumstances. For example, a quota cannot interfere with compliance with governing law on meal and rest breaks or prevent an employee from using the bathroom (which includes time traveling to and from the bathroom to the employee’s work location). Additionally, paid and unpaid breaks are not to be considered “productive time” unless the employee is required to remain on call during that time. The employer must also maintain records capturing: (1) each employee’s personal work speed, (2) aggregated work speed for similarly situated employees at the same work location, and (3) the written description of the quota each employee was provided. These records must be preserved for the entirety of the employee’s employment with the employer, plus all records applicable to the six-month period prior to termination of the employee’s employment must be preserved for an additional three years post-employment as well.
Once the Act takes effect, current employees will have a right to request (1) a written description of each quota to which they are subject, (2) a copy of the employee’s own personal work speed data, and (3) a copy of the prior six months of aggregated work data for similarly situated employees at the same location. Former employees maintain the right to request such information within three years post-employment as of the date of their separation. The employer must provide the written description of the quota to which the employee was subject within two business days from receipt of the request and within seven business days for the work speed data of the employee and aggregated data for similarly situated employees at the same location.
The Act includes a prohibition on employer retaliation and provides for a rebuttable presumption of retaliation should an employer take adverse action within 90 days of an employee engaging or attempting to engage in their rights protected under this new law. The Act does contain some vague language that may give rise to questions. For example, it does not define what constitutes “control over the wages, hours, or working conditions,” such that an entity may be considered an employer for purposes of the Act. The new statute does expressly direct the New York Department of Labor to adopt implementing regulations that may clarify this and other aspects of the law, including civil penalties for purposes of enforcement. If and when such rules are proposed, we will further advise.
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