June 2022: New York Warehouse Employers to Be Required to Disclose Quotas

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

What happened?
On June 3, 2022, 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.  

What are the details?
Effective 60 days after being signed into law by the governor, the WWPA will lay out two main requirements for warehouse employers with employee quotas:

• provide notice of the quotas to employees; and
• refrain from instituting a quota that prevents employees from taking breaks. 

Coverage  
The bill applies to any employer that, “at any time in the prior twelve months, employs or exercises control over the wages, hours, or working conditions of one hundred or more employees at a single warehouse distribution center or five hundred or more employees at one or more warehouse distribution centers in the state.”

Definitions
The bill provides the following definitions of “quota” and “warehouse distribution center”:

• Quotas are defined as work standards that require employees to perform “at a specified productivity speed,” or where employees’ actions are categorized by the time spent “performing tasks and not performing tasks, and the employee’s failure to complete a task performance standard . . . may have an adverse impact on the employee[’s] continued employment.”

• Warehouse Distribution Center is defined by the North American Industry Classification System Codes based on industry:

• Code 493 for warehousing and storage;
• Code 423 for merchant wholesalers, durable goods;
• Code 424 for merchant wholesalers, nondurable goods;
• Code 454,110 for electronic shopping and mail-order houses; or
• Code 492,110 for couriers and express delivery services.  

Requirements
Covered employers must abide by the following requirements:

• Quota Notification
  • The employer must provide a written description of each quota and any potential adverse employment action that could result from failure to meet it. Notice must be provided to current employees within 30 days of the effective date of the law, at the start of employment for new employees, and within two days of any change in the quota.
  • Each time an employer takes an adverse employment action against an employee based on the quota, it must provide that employee with the applicable quota for that employee.

• Breaks
  • Employees may not be required to meet a quota that prevents them from taking meal or rest periods or using the bathroom, including reasonable time to get to and from the bathroom.

• Recordkeeping
  • Covered employers must maintain records of each employee’s work speed data, aggregated work speed data for similar employees at the same establishment, and the required written notices of the quotas.
  • Following an employee’s separation from employment, records covering the six-month period prior to the date of separation must be preserved for three years and made available to the Commissioner of Labor upon request.

• Employee Right to Request Quota Description
  • Current and former employees can request a written description of each quota to which they are or were subject, a copy of their personal work speed data, and a copy of the aggregated work speed data.

Anti-Retaliation
The bill contains standard anti-retaliation language prohibiting covered employers from retaliating against employees who exercise their rights under the law.

Enforcement and Penalties
The bill does not provide for a private right of action by employees to enforce their rights in court.  Rather, it authorizes the Labor Commissioner to assess civil penalties for violations up to $100 for a first offense and $500 for subsequent offenses; penalties up to $20,000 for retaliation; and penalties up to 100% of unpaid wages.  The bill also provides for criminal penalties for violators.

Employers with operations involving covered warehouses should review the legislation and begin making changes to ensure compliance once this bill has been signed into law.

For more information, please see the links below:

Assembly Bill A10020A

Article 1 – Article 2

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