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March 2023: New York Delays and Limits Regulation of “Quotas” for Warehouse Worker

21 Mar

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Update Applicable to:
All businesses with warehouse workers in the state of New York.

What happened?
In a previous communication, we notified you that the New York Senate and General Assembly approved Assembly Bill A10020A (the Warehouse Worker Protection Act, “WWPA”), which, if signed by Governor Hochul, will require covered companies to disclose production quotas to warehouse workers and prohibit companies from preventing employees from taking legally-protected breaks. This is an update to that communication.

What are the details?
On December 21, 2022, New York Governor Kathy Hochul signed the Warehouse Worker Protection Act (WWPA) into law, which took effect on February 18, 2023.

While the WWPA initially went into effect, 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:

Definitions:
The Chapter Amendment revised several definitions outlined 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.  The threshold for coverage at a single site remains the same, at 100 employees. 
  • Warehouse distribution center was amended to exclude Farm Product Warehouses.

Notice
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 two business days of any quota changes.  The delayed effective date of the WWPA under the Chapter Amendment means that the notice deadline 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. 

Recordkeeping
The Chapter Amendment repeals many of the recordkeeping requirements. It 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 must be provided in the requesting employee’s primary language. 

Retaliation
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. 

Enforcement
The Chapter Amendment clarifies that the New York State Department of Labor (NYSDOL) may issue civil penalties “in addition to” any other penalties. It amends Section 218 of the Labor Law to allow NYSDOL to issue Orders to Comply.

Regulations
The Chapter Amendment repeals the mandatory requirement that NYSDOL adopts regulations in favor of permitting but not requiring such regulations. Still, NYSDOL’s authority to adopt rules ahead of the effective date of the WWPA was also specifically provided for in the Chapter Amendment, meaning that NYSDOL can begin the regulatory process before the new effective date of the WWPA. 

For more information, please see the links below:

Assembly Bill A10020A

A1000/S851

Previous Vensure Communication (June 28, 2023)

Article 1Article 2

What do employers need to do?
Employers should review the links provided above and should make changes to their policies so that they comply with the law once the governor has signed the bill.

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This communication is intended solely for the purpose of conveying information. The present post might incorporate hyperlinks directing readers to websites managed by third-party entities. The inclusion of any links within this communication is meant to serve as points of reference and could encompass opinion articles from various law firms, articles from HR associations, official websites, news releases, and documents of government agencies, and other relevant third-party sources. Vensure has no authority over these external websites and bears no responsibility for their content. Furthermore, Vensure does not endorse the materials present on these websites. The contents of this communication should not be interpreted as legal advice or as a legal standpoint concerning specific facts or scenarios. Nor should it be deemed an exhaustive compilation of facts potentially pertinent to federal, state, or local laws. It is strongly advised that employers solicit legal guidance from an employment attorney when undertaking actions in response to any legal updates provided. This is due to the possibility of future alterations occurring in federal, state, and local laws, regulations, as well as the directives and guidelines issued by governing agencies. These changes may transpire at any given time, potentially rendering certain portions of the content within this update void or inaccurate.

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