Assembly Actions - Lowercase Senate Actions - UPPERCASE |
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Dec 21, 2022 | approval memo.44 signed chap.722 |
Dec 19, 2022 | delivered to governor |
Jun 03, 2022 | returned to senate passed assembly ordered to third reading rules cal.633 substituted for a10020a |
Jun 01, 2022 | referred to ways and means delivered to assembly passed senate ordered to third reading cal.1784 committee discharged and committed to rules |
May 25, 2022 | print number 8922a |
May 25, 2022 | amend and recommit to labor |
Apr 28, 2022 | referred to labor |
senate Bill S8922A
Signed By GovernorEstablishes the warehouse worker protection act
Sponsored By
Jessica Ramos
(D, WF) 13th Senate District
Archive: Last Bill Status - Signed by Governor
- Introduced
- In Committee
- On Floor Calendar
- Passed Senate
- Passed Assembly
- Delivered to Governor
- Signed by Governor
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Jun 1, 2022 - floor Vote
S8922A4518floor45Aye18Nay0Absent0Excused0Abstained-
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Floor Vote: Jun 1, 2022
aye (45)- Addabbo
- Bailey
- Biaggi
- Breslin
- Brisport
- Brooks
- Brouk
- Cleare
- Comrie
- Cooney
- Felder
- Gaughran
- Gianaris
- Gounardes
- Harckham
- Hinchey
- Hoylman-Sigal
- Jackson
- Kaminsky
- Kaplan
- Kavanagh
- Kennedy
- Krueger
- Liu
- Mannion
- Mattera
- May
- Mayer
- Myrie
- Ortt
- Parker
- Persaud
- Ramos
- Reichlin-Melnick
- Rivera
- Ryan
- Salazar
- Sanders
- Savino
- Sepúlveda
- Serrano
- Skoufis
- Stavisky
- Stewart-Cousins
- Thomas
Jun 1, 2022 - Rules committee Vote
S8922A162committee16Aye2Nay3Aye with Reservations0Absent0Excused0Abstained -
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Co-Sponsors
Jamaal T. Bailey
(D) 36th Senate District
Cordell Cleare
(D) 30th Senate District
James Gaughran
(D) 0 Senate District
Michael Gianaris
(D, WF) 12th Senate District
- view additional co-sponsors
Andrew Gounardes
(D) 26th Senate District
Michelle Hinchey
(D, WF) 41st Senate District
Brad Hoylman-Sigal
(D, WF) 47th Senate District
Brian Kavanagh
(D) 27th Senate District
Timothy M. Kennedy
(D, WF) 63rd Senate District
Roxanne J. Persaud
(D) 19th Senate District
Elijah Reichlin-Melnick
(D, WF) 0 Senate District
Gustavo Rivera
(D, WF) 33rd Senate District
Julia Salazar
(D, WF) 18th Senate District
Diane J. Savino
(D, IP) 0 Senate District
Luis R. Sepúlveda
(D) 32nd Senate District
S8922 - Details
- See Assembly Version of this Bill:
- A10020
- Law Section:
- Labor Law
- Laws Affected:
- Add Art 21-A §§780 - 788, Lab L
S8922 - Summary
Establishes the warehouse worker protection act; requires employers to provide a written description of quotas to which employees are subject and states that employees shall not be required to meet quotas that prevent compliance with meal or rest periods, or use of bathroom facilities.
S8922 - Sponsor Memo
BILL NUMBER: S8922 SPONSOR: RAMOS TITLE OF BILL: An act to amend the labor law, in relation to establishing the warehouse worker protection act PURPOSE: Relates to the creation of a program to protect workers from unreason- able quotas and to reduce workplace injuries via a new section of Labor Law. This bill will support warehouse workers who currently have no protections from inhumane work quotas and also lack workplace ergonomics standards. SUMMARY OF PROVISIONS: Section 1: This Act shall be known as the "warehouse worker protection act" Section 2: Legislative findings.
Section 3: The labor law is amended by adding a new article 21-a as follows: Section 780 Definitions. Provides all definitions. Section 781 Quotas. Establishes transparency standards for the provision to each employee the quota to which they are subject and any conse- quences for failure to meet the quota. Section 782 Protection from Quotas. Quotas may not interfere with a worker meeting basic human needs, like meal or rest periods, use of bathroom and preventing workplace injury. Section 783 Time on Task. Time on task must include: 1) an employee's actions to minimize risk of injury; and 2) Paid and unpaid breaks are not considered productive time. Section 784 Right to Request. 1. a. Current and former employees have the right to request the quota to which they are subject as well as work speed data. b. Former employees may receive 6 months of former employee's quotas and work speed data. 2. Employers have two business days to comply with request made in part a. 3. Employers are not required to use quotas or monitor work speed data. If an employer does not monitor, then no obligation to provide it upon request. Section 785 Injury Reduction Program. Each employer shall establish this program to identify and minimize the risk of musculoskeletal injuries and disorders. 1. Worksite Evaluation. Each job shall have a written work site evalu- ation by a qualified ergonomist. a. Evaluation shall include whether there are quotas in place; b. Evaluation shall include worker recommendations on risk factors and changes to be made to reduce risk; c. Copies of evaluation shall be made available to workers; d. Evaluation shall be conducted within 3 months of effective data and updated annually; e. Within 6 months of enactment, the Commissioner shall create standards to determine certification for qualified ergonomists. 2. Control of risk factors that have caused or are likely to cause musculoskeletal injuries and disorders. Employer shall correct any risk factors identified in a timely manner. a. Where eliminating risk cannot be done, employer shall minimize expo- sure to risk; b. To reduce risk factors, employer shall consider: i. engineering controls and workstation redesign; ii. Administrative controls; c. Records of steps taken to eliminate or reduce risk 3. Training. Employers must provide injury reduction training to employ- ees, including: a. Symptoms of musculoskeletal injuries; b. Musculoskeletal injury risk factors and exposures; c. Methods to reduce risk factors; d. Employer's program to identify risk factors; e. Rights and functions of Workplace Safety Committees and the right to report; f. Unlawful retaliation provisions. 4. Medical Management. Medical professionals operating under legal scope of practice must staff any on-site medical office or first aid station. a. Employer must assure such staffing meets New York State requirements; b. Employers must consult with a NY State-Licensed Physician Board-Cer- tified in Occupational Medicine if workers must be seen by on-site medical providers prior to going to doctor; i. Medical consultant shall conduct evaluation of on-site medical management program; ii. Medical consultant shall provide a summary of treatment protocols; iii. Medical consultant shall review evaluation annually; iv. Designated medical providers shall observe all jobs in the ware- house; c. No unnecessary delays in provision of adequate medical care; d. No discrimination or retaliation for reporting work-related injury or illness. 5. Employee Involvement. Employer shall consult employees and designated representatives to develop and implement all aspects of this program. Section 786. Unlawful Retaliation. 1. No person shall retaliate against a person for exercising rights conferred under this act, including; a. Initiating a request for information; b. Making a complaint related to a quota; c. Making a complaint related to Injury Reduction Program. 2. Employee does not need to refer to this Act to be protected. 3. Rebuttable presumption if adverse action taken against a worker with- in 9 days of engaging in activities protected by this Act. Clear and convincing evidence must show that, a. The adverse action was taken for other permissible reasons; and b. The activities protected by this act were not motivating factor in adverse action. Section 787. Subpoena. Commissioner may request or subpoena employer records and data upon receipt of complaint regarding a violation of this section. Section 788. Enforcement. 1. Commissioner shall enforce this law 2. a. Employees or employee representatives may request an inspection of a facility by the commissioner. Such request shall be: i. Made in writing; ii. Specific; iii. Signed; iv. Provided to employer upon inspection by commissioner b. Inspections shall be made within three days of receipt of notice by Commissioner. 3. Employer and employee representatives may accompany the commissioner during an inspection. 4. Commissioner may inspect any aspect of facility where there is reason to believe a violation exists. 5. Employees accompanying commissioner on inspection shall not lose wages. 6. Commissioner may conduct inspection upon own initiative. 7. If request for inspection has been made based on imminent danger, the inspection shall be carried out immediately. 8. If commissioner finds a violation, within 6 months shall issue an order to comply. Penalties for failure to comply are set. 9. Orders to comply shall be posted at the workplace. 10. Employers and employees may petition the industrial board of appeals for review of determinations, followed by judicial review. 11. Commissioner can seek judicial enforcement of an order to comply. 12. a. Where conditions could reasonably be expected to cause serious phys- ical harm immediately, the Supreme Court has jurisdiction to restrain any practices prohibited under this section. b. Inspector shall inform employees of any dangers and recommendations if inspector finds they exist in accordance with paragraph a. c. If commissioner does not seek relief under this section within 48 hours of notification of such a condition, employees may seek injunctive relief. 13. Commissioner shall provide a report one year after enactment to the legislature. 14. If a worksite has annual employee injury rate at least 1.5 times as high as the warehouse industry average, the commissions shall conduct an investigation. 15. Commissioner may adopt regulations. 16. If the commissioner brings a successful action to enforce this part, the court may grant injunctive relief to obtain compliance and shall award costs and reasonable attorney's fees. Section 789. Private Right of Action. Employees may bring an action for injunctive relief to obtain compliance with this Act and may recover costs and reasonable attorney's fees. Sets limitations on awards. Section 790. Records. Any records collected based on investigations under this section shall be made public, although personally identifi- able information may be protected. Section 791. Other Powers. The Attorney General may prosecute actions for violations of this section. Section 4. Severability. Provisions are severable. Section 5. Effective Date. 60 days after it becomes law. JUSTIFICATION: a) The rapid growth of just-in-time logistics and same and next-day consumer package delivery, and advances in technology used for tracking employee productivity, have led to a rise in the number of warehouse and distribution center workers who are subject to quantified work quotas. (b) Warehouse and distribution center employees who work under those quotas are expected to complete a quantified number of tasks within specific time periods, often measured down to the minute or second, and face adverse employment action, including suspension or termination, if they fail to do so. (c) Those quotas generally do not allow for workers to comply with safe- ty guidelines or to recover from strenuous activity during productive work time, leaving warehouse and distribution center employees who work under them at high risk of injury and illness. (d) The quotas under which warehouse and distribution center employees regularly work also affect their compensation. Warehouse and distrib- ution center employees who work under a quota may not receive the full benefit of minimum wages if their quota is increased to make up for the direct or indirect effect of a minimum-wage increase. (e) Quotas in occupations that are already physically demanding incen- tivize unsafe work, resulting in an increase in injuries. The workforce in warehouse and logistics is largely comprised of people of color who depend upon these jobs to provide for their families and often see no alternative but to prioritize quota compliance over their own safety. These workers end up working faster than is healthy in order to keep their jobs. (f) Workplace injuries can take a terrible toll on workers, their fami- lies and their communities, and can create substantial costs for employ- ers. According to the most recent data (2020) released by the Bureau of Labor Statistics, the warehouse industry itself reports a rate of seri- ous work-related injuries involving lost time or restricted duty (4.0 cases/100 full-time workers) that is more than twice the average injury rates for all private industry (1.7 cases/100 FTE's). The most common types of work-related serious injury reported by employers in the ware- house sector are musculoskeletal injuries (MSDs), which often require workers to miss work and can force workers permanently out of the job and even out of the workforce. (g) Warehouse companies often require workers to perform fast paced manual material handling tasks. These involve well-known risk factors for serious injury such as rapid pace, repetitive forceful exertions like lifting heavy packages, and awkward postures like twisting/bending, and combinations thereof that are likely to cause MSDs. Scientific evidence shows that effective ergonomic interventions --such as reducing the pace, package weights and stressful postures--can lower the inci- dence and severity of work-related MSDs. The research is clear that the most effective method for reducing or eliminating these risk factors is to implement an ergonomics program that includes well-informed analysis of the worksite, implementation of solutions to reduce the dangerous risk factors, professionally competent medical management, effective worker training, and meaningful involvement by workers and their repre- sentatives in all aspects of the program. LEGISLATIVE HISTORY: New Bill FISCAL IMPLICATIONS: FY 2023: N/A EFFECTIVE DATE: This act shall take effect 60 days after it shall become law.
S8922 - Bill Text download pdf
S T A T E O F N E W Y O R K ________________________________________________________________________ 8922 I N S E N A T E April 28, 2022 ___________ Introduced by Sen. RAMOS -- read twice and ordered printed, and when printed to be committed to the Committee on Labor AN ACT to amend the labor law, in relation to establishing the warehouse worker protection act THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM- BLY, DO ENACT AS FOLLOWS: Section 1. This act shall be known and may be cited as the "warehouse worker protection act". § 2. Legislative findings. The legislature finds and declares that: (a) The rapid growth of just-in-time logistics and same- and next-day consumer package delivery, and advances in technology used for tracking employee productivity, have led to a rise in the number of warehouse and distribution center workers who are subject to quantified work quotas. (b) Warehouse and distribution center employees who work under such quotas are expected to complete a quantified number of tasks within specific time periods, often measured down to the minute or second, and face adverse employment action, including suspension or termination, if they fail to do so. (c) Those quotas generally do not allow for workers to comply with safety guidelines or to recover from strenuous activity during produc- tive work time, leaving warehouse and distribution center employees who work under them at high risk of injury and illness. (d) The quotas under which warehouse and distribution center employees regularly work also affect their compensation. Warehouse and distrib- ution center employees who work under a quota may not receive the full benefit of minimum wages if their quota is increased to make up for the direct or indirect effect of a minimum-wage increase. (e) Quotas in occupations that are already physically demanding incen- tivize unsafe work, resulting in an increase in injuries. The workforce in warehouse and logistics is largely comprised of people of color who depend upon these jobs to provide for their families and often see no alternative but to prioritize quota compliance over their own safety. These workers end up working faster than is healthy in order to keep their jobs. EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets [ ] is old law to be omitted.
LBD15159-02-2 S. 8922 2 (f) Workplace injuries can take a terrible toll on workers, their families and their communities, and can create substantial costs for employers. According to the most recent data (2020) released by the Bureau of Labor Statistics, the warehouse industry itself reports a rate of serious work-related injuries involving lost time or restricted duty (4.0 cases/100 full-time workers) that is more than twice the average injury rates for all private industry (1.7 cases/100 full-time workers). The most common types of work-related serious injury reported by employ- ers in the warehouse sector are musculoskeletal injuries, which often require workers to miss work and can force workers permanently out of the job and even out of the workforce. (g) Warehouse companies often require workers to perform fast paced manual material handling tasks. These involve well-known risk factors for serious injury such as rapid pace, repetitive forceful exertions like lifting heavy packages, and awkward postures like twisting/bending, and combinations thereof that are likely to cause musculoskeletal inju- ries. Scientific evidence shows that effective ergonomic interventions, such as reducing the pace, package weights and stressful postures, can lower the incidence and severity of work-related musculoskeletal inju- ries. The research is clear that the most effective method for reducing or eliminating these risk factors is to implement an ergonomics program that includes well-informed analysis of the worksite, implementation of solutions to reduce the dangerous risk factors, professionally competent medical management, effective worker training, and meaningful involve- ment by workers and their representatives in all aspects of the program. § 3. The labor law is amended by adding a new article 21-a to read as follows: ARTICLE 21-A WAREHOUSE WORKER PROTECTION ACT SECTION 780. DEFINITIONS. 781. QUOTAS. 782. PROTECTION FROM QUOTAS. 783. TIME ON TASK. 784. RIGHT TO REQUEST. 785. INJURY REDUCTION PROGRAM. 786. UNLAWFUL RETALIATION. 787. SUBPOENA. 788. ENFORCEMENT. 789. PRIVATE RIGHT OF ACTION. 790. RECORDS. 791. OTHER POWERS. § 780. DEFINITIONS. AS USED IN THIS ARTICLE: 1. "DEFINED TIME PERIOD" MEANS ANY UNIT OF TIME MEASUREMENT EQUAL TO OR LESS THAN THE DURATION OF AN EMPLOYEE'S SHIFT, AND INCLUDES HOURS, MINUTES, AND SECONDS AND ANY FRACTION THEREOF. 2. "DESIGNATED EMPLOYEE REPRESENTATIVE" MEANS ANY EMPLOYEE REPRESEN- TATIVE, INCLUDING BUT NOT LIMITED TO AN AUTHORIZED EMPLOYEE REPRESEN- TATIVE THAT HAS A COLLECTIVE BARGAINING RELATIONSHIP WITH THE EMPLOYER. 3. "EMPLOYEE" MEANS A NONEXEMPT EMPLOYEE WHO WORKS AT A WAREHOUSE DISTRIBUTION CENTER. 4. (A) "EMPLOYEE WORK SPEED DATA" MEANS INFORMATION AN EMPLOYER COLLECTS, STORES, ANALYZES, OR INTERPRETS RELATING TO AN INDIVIDUAL EMPLOYEE'S PERFORMANCE OF A QUOTA, INCLUDING, BUT NOT LIMITED TO, QUAN- TITIES OF TASKS PERFORMED, QUANTITIES OF ITEMS OR MATERIALS HANDLED OR PRODUCED, RATES OR SPEEDS OF TASKS PERFORMED, MEASUREMENTS OR METRICS OF S. 8922 3 EMPLOYEE PERFORMANCE IN RELATION TO A QUOTA, AND TIME CATEGORIZED AS PERFORMING TASKS OR NOT PERFORMING TASKS. (B) "AGGREGATED DATA" MEANS INFORMATION THAT AN EMPLOYER HAS COMBINED OR COLLECTED TOGETHER IN SUMMARY OR OTHER FORM SUCH THAT THE DATA CANNOT BE IDENTIFIED WITH ANY INDIVIDUAL. 5. "EMPLOYER" MEANS A PERSON WHO DIRECTLY OR INDIRECTLY, OR THROUGH AN AGENT OR ANY OTHER PERSON, INCLUDING THROUGH THE SERVICES OF A THIRD- PARTY EMPLOYER, TEMPORARY SERVICES, OR STAFFING AGENCY, INDEPENDENT CONTRACTOR, OR ANY SIMILAR ENTITY, AT ANY TIME IN THE PRIOR TWELVE MONTHS, EMPLOYS OR EXERCISES CONTROL OVER THE WAGES, HOURS, OR WORKING CONDITIONS OF FIFTY 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. FOR THE PURPOSES OF THIS SUBDIVISION: (A) ALL EMPLOYEES EMPLOYED DIRECTLY OR INDIRECTLY, OR THROUGH AN AGENT OR ANY OTHER PERSON, AS DESCRIBED IN THE OPENING PARAGRAPH OF THIS SUBDIVISION, AS WELL AS ANY EMPLOYEE EMPLOYED BY A MEMBER OF A CONTROLLED GROUP OF CORPORATIONS OF WHICH THE EMPLOYER IS A MEMBER, SHALL BE COUNTED IN DETERMINING THE NUMBER OF EMPLOYEES EMPLOYED AT A SINGLE WAREHOUSE DISTRIBUTION CENTER OR AT ONE OR MORE WAREHOUSE DISTRIBUTION CENTERS IN THE STATE; AND (B) ALL AGENTS OR OTHER PERSONS, AS DESCRIBED IN THE OPENING PARAGRAPH OF THIS SUBDIVISION, AND ALL MEMBERS OF A CONTROLLED GROUP OF CORPORATIONS OF WHICH THE EMPLOYER IS A MEMBER, SHALL BE DEEMED TO BE EMPLOYERS AND SHALL BE JOINTLY AND SEVERALLY RESPONSIBLE FOR COMPLIANCE WITH THIS ARTICLE. FOR PURPOSES OF THIS SUBDIVISION, THE TERM "CONTROLLED GROUP OF CORPORATIONS" SHALL BE DEFINED AS PROVIDED UNDER SECTION 1563 OF THE INTERNAL REVENUE CODE, 26 U.S.C. SECTION 1563, EXCEPT THAT FIFTY PERCENT SHALL BE SUBSTITUTED FOR EIGHTY PERCENT WHERE EIGHTY PERCENT IS SPECIFIED IN THAT DEFINITION. 6. "MUSCULOSKELETAL INJURIES AND DISORDERS" MEANS WORK RELATED INJU- RIES, OR DISORDERS, OF THE MUSCLES, NERVES, TENDONS, LIGAMENTS, JOINTS, CARTILAGE OF THE UPPER AND LOWER LIMBS, NECK AND LOWER BACK (INCLUDING SPINAL DISCS) THAT (A) ARE CAUSED BY SUDDEN OR SUSTAINED PHYSICAL EXERTION, OR (B) ARE NOT THE RESULT OF ANY INSTANTANEOUS NON-EXERTION EVENT, SUCH AS SLIPS, TRIPS, OR FALLS. 7. "PERSON" MEANS AN INDIVIDUAL, CORPORATION, PARTNERSHIP, LIMITED PARTNERSHIP, LIMITED LIABILITY PARTNERSHIP, LIMITED LIABILITY COMPANY, BUSINESS TRUST, ESTATE, TRUST, ASSOCIATION, JOINT VENTURE, AGENCY, INSTRUMENTALITY, OR ANY OTHER LEGAL OR COMMERCIAL ENTITY, WHETHER DOMES- TIC OR FOREIGN. 8. "QUALIFIED ERGONOMIST" MEANS AN ERGONOMIST WHO IS ABLE TO DEMON- STRATE PROFICIENCY IN THE CORE, MINIMUM COMPETENCIES OF ERGONOMICS AND INJURY PREVENTION, AS DEFINED BY THE COMMISSIONER. UNTIL THE COMMISSION- ER DEFINES SUCH COMPETENCIES AND APPROVES ERGONOMISTS IN ACCORDANCE WITH SUCH COMPETENCIES, CONSULTANTS APPROVED BY THE COMMISSIONER UNDER 12 CRR-NY 59 AND 60 WITH A CREDENTIAL AS A CERTIFIED SAFETY PROFESSIONAL OR CERTIFIED INDUSTRIAL HYGIENIST SHALL BE DEEMED TO QUALIFY AS AN ERGONOM- IST. 9. "QUOTA" MEANS A WORK STANDARD WHICH: (A) AN EMPLOYEE IS ASSIGNED OR REQUIRED TO PERFORM: (I) AT A SPECIFIED PRODUCTIVITY SPEED; OR A QUANTIFIED NUMBER OF TASKS, OR TO HANDLE OR PRODUCE A QUANTIFIED AMOUNT OF MATERIAL, WITHIN A DEFINED TIME PERIOD; OR (B) AN EMPLOYEE'S ACTIONS ARE CATEGORIZED BETWEEN TIME PERFORMING TASKS AND NOT PERFORMING TASKS, AND THE EMPLOYEE'S FAILURE TO COMPLETE A TASK PERFORMANCE STANDARD OR RECOMMENDATION MAY HAVE AN ADVERSE IMPACT S. 8922 4 ON THE EMPLOYEE'S CONTINUED EMPLOYMENT OR THE CONDITIONS OF SUCH EMPLOY- MENT. 10. "WAREHOUSE DISTRIBUTION CENTER" MEANS AN ESTABLISHMENT AS DEFINED BY ANY OF THE FOLLOWING NORTH AMERICAN INDUSTRY CLASSIFICATION SYSTEM ("NAICS") CODES, HOWEVER SUCH ESTABLISHMENT IS DENOMINATED: (A) FOUR HUNDRED NINETY-THREE FOR WAREHOUSING AND STORAGE; (B) FOUR HUNDRED TWENTY-THREE FOR MERCHANT WHOLESALERS, DURABLE GOODS; (C) FOUR HUNDRED TWENTY-FOUR FOR MERCHANT WHOLESALERS, NONDURABLE GOODS; (D) FOUR HUNDRED FIFTY-FOUR THOUSAND ONE HUNDRED TEN FOR ELECTRONIC SHOPPING AND MAIL-ORDER HOUSES; OR (E) FOUR HUNDRED NINETY-TWO THOUSAND ONE HUNDRED TEN FOR COURIERS AND EXPRESS DELIVERY SERVICES. § 781. QUOTAS. EACH EMPLOYER SHALL PROVIDE TO EACH EMPLOYEE, UPON HIRE, OR WITHIN THIRTY DAYS OF THE EFFECTIVE DATE OF THIS ARTICLE, A WRITTEN DESCRIPTION OF EACH QUOTA TO WHICH THE EMPLOYEE IS SUBJECT, INCLUDING THE QUANTIFIED NUMBER OF TASKS TO BE PERFORMED OR MATERIALS TO BE PRODUCED OR HANDLED, WITHIN THE DEFINED TIME PERIOD, AND ANY POTEN- TIAL ADVERSE EMPLOYMENT ACTION THAT COULD RESULT FROM FAILURE TO MEET THE QUOTA. EACH TIME THE QUOTA CHANGES THEREAFTER, THE EMPLOYER SHALL PROVIDE AN UPDATED WRITTEN DESCRIPTION OF EACH QUOTA TO WHICH THE EMPLOYEE IS SUBJECT WITHIN TWO BUSINESS DAYS OF SUCH QUOTA CHANGE. EACH TIME AN EMPLOYER TAKES AN ADVERSE EMPLOYMENT ACTION AGAINST AN EMPLOYEE, THE EMPLOYER SHALL PROVIDE THAT EMPLOYEE WITH THE APPLICABLE QUOTA FOR THE EMPLOYEE. § 782. PROTECTION FROM QUOTAS. AN EMPLOYEE SHALL NOT BE REQUIRED TO MEET A QUOTA THAT PREVENTS COMPLIANCE WITH MEAL OR REST PERIODS, USE OF BATHROOM FACILITIES, INCLUDING REASONABLE TRAVEL TIME TO AND FROM BATH- ROOM FACILITIES, OR INCREASES THE RISKS OF MUSCULOSKELETAL INJURIES AND DISORDERS. AN EMPLOYER SHALL NOT TAKE ADVERSE EMPLOYMENT ACTION AGAINST AN EMPLOYEE FOR FAILURE TO MEET A QUOTA THAT DOES NOT ALLOW A WORKER TO COMPLY WITH MEAL AND REST PERIODS, OR MINIMIZE THE RISKS OF MUSCULOSK- ELETAL INJURIES AND DISORDERS, OR FOR FAILURE TO MEET A QUOTA THAT HAS NOT BEEN DISCLOSED TO THE EMPLOYEE PURSUANT TO SECTION SEVEN HUNDRED EIGHTY-ONE OF THIS ARTICLE. § 783. TIME ON TASK. 1. ANY ACTIONS TAKEN BY AN EMPLOYEE TO MINIMIZE THE RISKS OF MUSCULOSKELETAL INJURIES AND DISORDERS AND COMPLY WITH REQUIREMENTS OF THE INJURY PREVENTION PROGRAM SHALL BE CONSIDERED TIME ON TASK AND PRODUCTIVE TIME FOR PURPOSES OF ANY QUOTA OR MONITORING SYSTEM. 2. NOTWITHSTANDING SUBDIVISION ONE OF THIS SECTION, CONSISTENT WITH EXISTING LAW, PAID AND UNPAID BREAKS SHALL NOT BE CONSIDERED PRODUCTIVE TIME FOR THE PURPOSE OF ANY QUOTA OR MONITORING SYSTEM UNLESS THE EMPLOYEE IS REQUIRED TO REMAIN ON CALL. § 784. RIGHT TO REQUEST. 1. (A) A CURRENT OR FORMER EMPLOYEE HAS THE RIGHT TO REQUEST, AND THE EMPLOYER SHALL PROVIDE AT NO COST TO THE EMPLOYEE, A WRITTEN DESCRIPTION OF EACH QUOTA TO WHICH THE EMPLOYEE IS SUBJECT, A COPY OF THE EMPLOYEE'S OWN PERSONAL WORK SPEED DATA AND A COPY OF THE PRIOR SIX MONTHS OF AGGREGATED WORK SPEED DATA FOR SIMILAR EMPLOYEES AT THE SAME ESTABLISHMENT. (B) IF A FORMER EMPLOYEE REQUESTS A WRITTEN DESCRIPTION OF THE QUOTAS TO WHICH THEY WERE SUBJECT AND A COPY OF THEIR OWN PERSONAL WORK SPEED DATA PURSUANT TO PARAGRAPH (A) OF THIS SUBDIVISION, THE EMPLOYER SHALL PROVIDE SIX MONTHS OF THE FORMER EMPLOYEE'S QUOTAS AND PERSONAL WORK SPEED DATA FOR THE SIX MONTHS PRIOR TO THE DATE OF THE EMPLOYEE'S SEPA- RATION FROM THE EMPLOYER. S. 8922 5 2. AN EMPLOYER THAT RECEIVES A WRITTEN OR ORAL REQUEST FOR INFORMATION PURSUANT TO SUBDIVISION ONE OF THIS SECTION SHALL COMPLY WITH THE REQUEST AS SOON AS PRACTICABLE, BUT NO LATER THAN TWO BUSINESS DAYS FOLLOWING THE DATE OF THE REQUEST. 3. NOTHING IN THIS SECTION SHALL REQUIRE AN EMPLOYER TO USE QUOTAS OR MONITOR WORK SPEED DATA. AN EMPLOYER THAT DOES NOT MONITOR THIS DATA HAS NO OBLIGATION TO PROVIDE IT. § 785. INJURY REDUCTION PROGRAM. EVERY EMPLOYER SUBJECT TO THIS SECTION SHALL ESTABLISH AND IMPLEMENT AN INJURY REDUCTION PROGRAM DESIGNED TO IDENTIFY AND MINIMIZE THE RISKS OF MUSCULOSKELETAL INJURIES AND DISORDERS AMONG WORKERS INVOLVED IN PERFORMING MANUAL MATERIALS HANDLING TASKS. THE PROGRAM SHALL INCLUDE: WORKSITE EVALUATION; CONTROL OF EXPOSURES, INCLUDING PACE, WHICH HAVE CAUSED OR HAVE THE POTENTIAL TO CAUSE MUSCULOSKELETAL INJURIES AND DISORDERS; EMPLOYEE TRAINING; MEDICAL MANAGEMENT; AND EMPLOYEE INVOLVEMENT. 1. THE EMPLOYER SHALL ASSURE THAT EACH JOB, PROCESS, OR OPERATION OF WORK ACTIVITY COVERED BY THIS SECTION OR A REPRESENTATIVE NUMBER OF SUCH JOBS, PROCESSES, OR OPERATIONS OF IDENTICAL WORK ACTIVITIES SHALL HAVE A WRITTEN WORK SITE EVALUATION BY A QUALIFIED ERGONOMIST FOR RISK FACTORS WHICH HAVE OR ARE LIKELY TO CAUSE MUSCULOSKELETAL INJURIES AND DISOR- DERS. SUCH RISK FACTORS SHALL INCLUDE, BUT ARE NOT LIMITED TO, RAPID PACE, FORCEFUL EXERTIONS, REPETITIVE MOTIONS, TWISTING, BENDING, AND AWKWARD POSTURES AND COMBINATIONS THEREOF THAT HAD CAUSED OR ARE LIKELY TO CAUSE MUSCULOSKELETAL INJURIES AND DISORDERS. (A) ANY WORKSITE EVALUATIONS SHALL ALSO DETERMINE WHETHER ANY EMPLOY- EES EXPOSED TO SUCH RISK FACTORS ARE SUBJECT TO EITHER PERSONNEL ACTION WITH THE POTENTIAL FOR ADVERSE ACTION, OR ADVERSE ACTION OR TERMINATION THEMSELVES, ARISING IN WHOLE OR IN PART FROM AN EMPLOYER'S USE OF QUOTAS TO DETERMINE EMPLOYEE ASSIGNMENTS. (B) ALL SUCH WORKSITE EVALUATIONS SHALL OBTAIN RECOMMENDATIONS FROM WORKERS WHO REGULARLY PERFORM THOSE JOBS ON THE POSSIBLE RISK FACTORS AND ANY WORKPLACE CHANGES THAT CAN REDUCE SUCH RISK FACTORS. (C) COPIES OF SUCH WORKSITE RISK FACTOR EVALUATIONS SHALL BE MADE AVAILABLE TO WORKERS AND THEIR REPRESENTATIVES UPON REQUEST, AT NO COST, WITHIN ONE BUSINESS DAY OF SUCH REQUEST. WORKERS AND THEIR REPRESEN- TATIVE SHALL BE NOTIFIED IN WRITING OF THE RESULTS OF THE WORKSITE EVAL- UATION. EMPLOYERS SHALL MAINTAIN ACCESSIBLE COPIES OF SUCH EVALUATIONS AT LOCATIONS WITHIN THE WAREHOUSE AND SHALL MAKE SUCH COPIES READILY AVAILABLE TO WORKERS. (D) AN INITIAL WORKSITE EVALUATION SHALL BE CONDUCTED WITHIN THREE MONTHS AFTER THE EFFECTIVE DATE OF THIS ARTICLE. WORKSITE EVALUATIONS SHALL BE REVIEWED AND UPDATED AT LEAST ANNUALLY THEREAFTER. A NEW ANALY- SIS OF RISK FACTORS SHALL BE CONDUCTED IN ACCORDANCE WITH THE PROVISIONS OF THE OPENING PARAGRAPH OF THIS SUBDIVISION WHENEVER A NEW JOB, PROC- ESS, OR OPERATION IS INTRODUCED WHICH COULD INCREASE THE RISK FACTORS FOR MUSCULOSKELETAL INJURIES AND DISORDERS. SUCH NEW ANALYSIS SHALL BE CONDUCTED WITHIN THIRTY DAYS OF THE CREATION OR CHANGE OF A JOB, PROCESS OR OPERATION. (E) WITHIN THREE MONTHS OF THE EFFECTIVE DATE OF THIS ARTICLE, THE COMMISSIONER SHALL FORM A TASK FORCE CHAIRED BY A RECOGNIZED ACADEMIC LEADER IN THE FIELD OF ERGONOMICS IN NEW YORK STATE AND INCLUDING, BUT NOT LIMITED TO, REPRESENTATIVES FROM THE WAREHOUSE WORKFORCE, LABOR ORGANIZATIONS ACTIVE IN THE WAREHOUSING INDUSTRY, AND EMPLOYERS IN THE INDUSTRY, TO RECOMMEND THE CORE COMPETENCIES REQUIRED FOR THE CERTIF- ICATION OF QUALIFIED ERGONOMISTS. WITHIN SIX MONTHS OF THE EFFECTIVE DATE OF THIS ARTICLE, THE COMMISSIONER SHALL ADOPT A STANDARD AND PROC- S. 8922 6 ESS FOR CERTIFYING QUALIFIED ERGONOMISTS BASED ON THE RECOMMENDATIONS OF THE TASK FORCE. 2. THE EMPLOYER SHALL CORRECT IN A TIMELY MANNER ANY RISK FACTORS IDENTIFIED AS HAVING CAUSED OR BEING LIKELY TO CAUSE MUSCULOSKELETAL INJURIES AND DISORDERS. FOR ANY CORRECTIONS WHICH REQUIRE MORE THAN THIRTY DAYS TO COMPLETE, THE EMPLOYER SHALL REVISE, AS NEEDED, AND PROVIDE A SCHEDULE FOR SUCH PROPOSED CORRECTIONS. SUCH SCHEDULE SHALL BE INCLUDED IN THE EVALUATIONS PROVIDED TO WORKERS AND THEIR REPRESEN- TATIVES. (A) WHERE THE EMPLOYER DEMONSTRATES THAT IT IS UNABLE TO ELIMINATE IDENTIFIED RISK FACTORS, THE EMPLOYER SHALL MINIMIZE THE EXPOSURES TO THE EXTENT FEASIBLE. (B) IN REDUCING RISK FACTORS, THE EMPLOYER SHALL CONSIDER: (I) ENGINEERING CONTROLS AND REDESIGNING WORK STATIONS TO CHANGE SHELVING HEIGHTS, PROVIDE ADJUSTABLE FIXTURES OR TOOL REDESIGN; AND (II) ADMINISTRATIVE CONTROLS, SUCH AS JOB ROTATION WHICH REDUCES THE EXPOSURE TO RISK FACTORS, REDUCED WORK PACING OR ADDITIONAL WORK BREAKS. (C) EMPLOYERS SHALL MAINTAIN RECORDS OF STEPS TAKEN TO ELIMINATE OR REDUCE RISK FACTORS AND SHALL MAKE COPIES AVAILABLE TO WORKERS AND THEIR REPRESENTATIVES UPON REQUEST. 3. ALL EMPLOYERS COVERED BY THIS SECTION SHALL PROVIDE INJURY REDUCTION TRAINING TO ALL EMPLOYEES INVOLVED IN PERFORMING MANUAL MATE- RIALS HANDLING JOBS AND TASKS AT THE WAREHOUSE DURING NORMAL WORK HOURS AND WITHOUT SUFFERING A LOSS OF PAY. SUCH TRAINING SHALL BE PROVIDED IN A LANGUAGE AND VOCABULARY THAT THE WORKERS UNDERSTAND AND SHALL BE REPEATED ANNUALLY. THE TRAINING SHALL ALSO BE PROVIDED TO THE WORKERS' SUPERVISORS. SUCH TRAINING SHALL BE IN ADDITION TO THE TRAINING REQUIRED UNDER SECTION TWENTY-SEVEN-D OF THIS CHAPTER AND SHALL INCLUDE: (A) THE EARLY SYMPTOMS OF MUSCULOSKELETAL INJURIES AND DISORDERS AND THE IMPORTANCE OF EARLY DETECTION; (B) MUSCULOSKELETAL INJURY AND DISORDER RISK FACTORS AND EXPOSURES AT WORK, INCLUDING THE HAZARDS POSED BY EXCESSIVE RATES OF WORK; (C) METHODS TO REDUCE RISK FACTORS FOR MUSCULOSKELETAL INJURIES AND DISORDERS, INCLUDING BOTH ENGINEERING CONTROLS AND ADMINISTRATIVE CONTROLS, SUCH AS LIMITATIONS ON WORK PACE AND INCREASED SCHEDULED AND UNSCHEDULED BREAKS; (D) THE EMPLOYER'S PROGRAM TO IDENTIFY RISK FACTORS AS REQUIRED UNDER THIS SECTION AND PREVENT MUSCULOSKELETAL INJURIES AND DISORDERS, INCLUD- ING THE SUMMARY PROTOCOLS FOR MEDICAL TREATMENT APPROVED BY THE EMPLOY- ER'S MEDICAL CONSULTANT; (E) THE RIGHTS AND FUNCTION OF WORKPLACE SAFETY COMMITTEES ESTABLISHED UNDER SECTION TWENTY-SEVEN-D OF THIS CHAPTER AND THE RIGHTS OF EMPLOYEES TO REPORT ANY RISK FACTORS, OTHER HAZARDS, INJURIES OR HEALTH AND SAFETY CONCERNS; AND (F) TRAINING ON THE UNLAWFUL RETALIATION OF ANY PROVISION IN THIS SECTION, INCLUDING THE DISCIPLINARY ACTIONS REQUIRED WHEN SUPERVISORS OR MANAGERS VIOLATE THE LAW OR POLICY, AS WELL AS THE EMPLOYER'S POLICY PROHIBITING ANY WORKPLACE DISCRIMINATION. 4. ANY ON-SITE MEDICAL OFFICE OR FIRST AID STATION THAT SEES WORKERS IN WAREHOUSES COVERED BY THIS SECTION WITH SYMPTOMS OF MUSCULOSKELETAL INJURIES AND DISORDERS SHALL BE STAFFED WITH MEDICAL PROFESSIONALS OPER- ATING WITHIN THEIR LEGAL SCOPE OF PRACTICE. (A) EMPLOYERS SHALL ASSURE THAT STAFFING AND THE PRACTICE OF ANY FIRST AID OR MEDICAL STATION MEETS STATE REQUIREMENTS FOR PHYSICIAN SUPER- VISION OF NURSES, EMERGENCY MEDICAL TECHNICIANS OR OTHER NON-PHYSICIAN PERSONNEL. S. 8922 7 (B) IN ALL WAREHOUSES WHERE EMPLOYERS REQUIRE THAT WORKERS WITH SIGNS AND SYMPTOMS OF MUSCULOSKELETAL INJURIES AND DISORDERS SHALL FIRST BE SEEN BY AN ON-SITE MEDICAL OR FIRST AID PROVIDER OR HAVE THE APPROVAL OF THE EMPLOYER PRIOR TO BEING SENT TO A DOCTOR, THE EMPLOYER SHALL CONSULT WITH A MEDICAL CONSULTANT WHO IS LICENSED BY NEW YORK STATE AND BOARD CERTIFIED IN OCCUPATIONAL MEDICINE. (I) THE EMPLOYER SHALL OBTAIN FROM THE MEDICAL CONSULTANT A WRITTEN EVALUATION OF THE MEDICAL MANAGEMENT PROGRAM AND PROTOCOLS FOLLOWED IN THE WAREHOUSE FOR IDENTIFICATION AND TREATMENT OF MUSCULOSKELETAL INJU- RIES AND DISORDERS AND SHALL INCLUDE RECOMMENDATIONS TO ENSURE COMPLI- ANCE WITH ACCEPTED MEDICAL PRACTICE OF THE STAFFING, SUPERVISION AND DOCUMENTATION OF MEDICAL TREATMENT PROTOCOLS. (II) THE EMPLOYER SHALL OBTAIN FROM THE MEDICAL CONSULTANT A SUMMARY OF TREATMENT PROTOCOLS SUITABLE FOR WORKER PATIENTS COVERING ALL ASPECTS OF THE MEDICAL MANAGEMENT PRACTICES, FROM EARLY DETECTION OF MUSCULOSK- ELETAL INJURIES AND DISORDERS THROUGH EVALUATION BY A QUALIFIED PHYSI- CIAN AND PHYSICIAN PROVISION OF APPROPRIATE WORK RESTRICTIONS IN LANGUAGES UNDERSTOOD BY THE EMPLOYEES. (III) THE EMPLOYER SHALL ENSURE THAT THE MEDICAL CONSULTANT REVIEWS THE PREVIOUS MEDICAL CONSULTANT EVALUATION, RELATED MATERIALS AND PROTO- COLS ON AN ANNUAL BASIS, AND RECOMMENDS CHANGES AS APPROPRIATE. (IV) THE EMPLOYER SHALL ASSURE THAT ALL DESIGNATED MEDICAL AND FIRST AID PROVIDERS HAVE OBSERVED, IN PERSON, THE JOBS INVOLVING MANUAL MATE- RIALS HANDLING WITHIN THE WAREHOUSE AND ALL RISK FACTORS IDENTIFIED IN THE EVALUATION CONDUCTED UNDER THE MEDICAL CONSULTANT EVALUATION. (C) THERE SHALL BE NO UNNECESSARY DELAYS IN THE PROVISION OF ADEQUATE MEDICAL CARE TO WORKERS WHO REPORT INJURIES TO THE ON-SITE MEDICAL SERVICES. (D) EACH EMPLOYER SHALL ENSURE THAT NO SUPERVISORY OR MANAGERIAL EMPLOYEE OR OTHER PERSON DISCRIMINATES OR RETALIATES AGAINST ANY CURRENT, FORMER, OR PROSPECTIVE EMPLOYEE OR OTHER PERSON FOR REPORTING A WORK-RELATED INJURY OR ILLNESS, OR HEALTH AND SAFETY CONCERN. 5. EMPLOYERS SHALL ASSURE THAT EMPLOYEES AND THEIR DESIGNATED REPRE- SENTATIVES ARE CONSULTED BOTH BEFORE AND DURING THE DEVELOPMENT AND IMPLEMENTATION OF ALL ASPECTS OF THE PROGRAM. WHERE EMPLOYEES HAVE ESTABLISHED A WORKPLACE SAFETY COMMITTEE IN COMPLIANCE WITH SECTION TWENTY-SEVEN-D OF THIS CHAPTER, THE EMPLOYER SHALL ASSURE THAT THE COMMITTEE IS CONSULTED REGARDING THE DEVELOPMENT AND IMPLEMENTATION OF ALL ASPECTS OF THE INJURY REDUCTION PROGRAM. ANY RECORD CREATED BY THE EMPLOYER ACCORDING TO THIS SECTION SHALL BE PROVIDED TO THE WORKPLACE SAFETY COMMITTEE PRIOR TO CONSULTATION. ALL DOCUMENTS PROVIDED TO EMPLOYEES SHALL BE PROVIDED IN WRITING IN ENGLISH AND IN THE LANGUAGE IDENTIFIED BY EACH EMPLOYEE AS THE PRIMARY LANGUAGE OF SUCH EMPLOYEE. § 786. UNLAWFUL RETALIATION. 1. NO PERSON, INCLUDING BUT NOT LIMITED TO AN EMPLOYER, HIS OR HER AGENT, OR PERSON ACTING AS OR ON BEHALF OF A HIRING ENTITY, OR THE OFFICER OR AGENT OF ANY ENTITY, BUSINESS, CORPO- RATION, PARTNERSHIP, OR LIMITED LIABILITY COMPANY, SHALL DISCHARGE OR IN ANY WAY RETALIATE, DISCRIMINATE OR TAKE ADVERSE ACTION AGAINST ANY PERSON FOR EXERCISING ANY RIGHTS CONFERRED UNDER THIS ARTICLE, OR FOR BEING PERCEIVED AS EXERCISING RIGHTS CONFERRED BY THIS ARTICLE, INCLUD- ING BUT NOT LIMITED TO: (A) INITIATING A REQUEST FOR INFORMATION ABOUT A QUOTA OR PERSONAL WORK SPEED DATA PURSUANT TO PARAGRAPH (A) OF SUBDIVISION ONE OF SECTION SEVEN HUNDRED EIGHTY-FOUR OF THIS ARTICLE. (B) MAKING A COMPLAINT RELATED TO A QUOTA ALLEGING ANY VIOLATION OF SECTION SEVEN HUNDRED EIGHTY-ONE, SEVEN HUNDRED EIGHTY-TWO, SEVEN S. 8922 8 HUNDRED EIGHTY-THREE, OR SEVEN HUNDRED EIGHTY-FOUR OF THIS ARTICLE TO THE COMMISSIONER, ANY OTHER LOCAL, STATE, OR FEDERAL GOVERNMENTAL AGENCY OR OFFICIAL, OR THE EMPLOYER. (C) MAKING A COMPLAINT RELATED TO SECTION SEVEN HUNDRED EIGHTY-FIVE OF THIS ARTICLE. 2. AN EMPLOYEE NEED NOT EXPLICITLY REFER TO THIS ARTICLE OR THE RIGHTS ENUMERATED HEREIN TO BE PROTECTED FROM AN ADVERSE ACTION. PROTECTIONS OF THIS SECTION SHALL APPLY TO FORMER EMPLOYEES AND TO EMPLOYEES WHO MISTAKENLY BUT IN GOOD FAITH ALLEGE VIOLATIONS OF THIS ARTICLE. 3. IF A PERSON TAKES ADVERSE ACTION AGAINST AN EMPLOYEE WITHIN NINETY DAYS OF THE EMPLOYEE'S ENGAGING OR ATTEMPTING TO ENGAGE IN ACTIVITIES PROTECTED BY THIS ARTICLE, SUCH CONDUCT SHALL RAISE A REBUTTABLE PRESUMPTION THAT THE ACTION IS AN ADVERSE ACTION IN VIOLATION OF THIS ARTICLE. SUCH PRESUMPTION MAY BE REBUTTED BY CLEAR AND CONVINCING EVIDENCE THAT: (A) THE ACTION WAS TAKEN FOR OTHER PERMISSIBLE REASONS; AND (B) THE ENGAGING OR ATTEMPTING TO ENGAGE IN ACTIVITIES PROTECTED BY THIS ARTICLE WAS NOT A MOTIVATING FACTOR IN THE ADVERSE ACTION. § 787. SUBPOENA. UPON RECEIVING A COMPLAINT REGARDING A VIOLATION OF THIS ARTICLE, THE COMMISSIONER MAY REQUEST OR SUBPOENA EMPLOYER RECORDS OR DATA RELATED TO THIS ARTICLE. § 788. ENFORCEMENT. 1. THE COMMISSIONER SHALL BE AUTHORIZED TO ENFORCE THE PROVISIONS OF THIS ARTICLE. 2. (A) ANY EMPLOYEE OR REPRESENTATIVE OF EMPLOYEES WHO BELIEVES THAT AN EMPLOYER MAY VIOLATE THE REQUIREMENTS OF THIS ARTICLE OR THAT AN IMMINENT DANGER EXISTS, MAY REQUEST AN INSPECTION BY GIVING NOTICE TO THE COMMISSIONER OF SUCH VIOLATION OR DANGER. SUCH NOTICE AND REQUEST SHALL: (I) BE IN WRITING, EITHER PHYSICAL OR ELECTRONIC; (II) SET FORTH WITH REASONABLE PARTICULARITY THE GROUNDS FOR THE NOTICE; (III) BE SIGNED BY THE EMPLOYEE OR REPRESENTATIVE OF EMPLOYEES; (IV) BE PROVIDED BY THE COMMISSIONER TO THE EMPLOYER OR THE PERSON IN CHARGE NO LATER THAN THE TIME OF INSPECTION, EXCEPT THAT THE NAME OF THE PERSON GIVING NOTICE TO THE COMMISSIONER AND THE NAMES OF INDIVIDUAL EMPLOYEES OR REPRESENTATIVES OF EMPLOYEES SHALL BE WITHHELD UNLESS SUCH EMPLOYEES OR REPRESENTATIVES HAVE PROVIDED EXPRESS WRITTEN PERMISSION FOR SUCH INFORMATION TO BE SHARED. (B) INSPECTIONS PURSUANT TO THIS SUBDIVISION SHALL BE MADE WITHIN THREE DAYS OF RECEIPT OF NOTICE BY THE COMMISSIONER. 3. A REPRESENTATIVE OF THE EMPLOYER AND A DESIGNATED EMPLOYEE REPRE- SENTATIVE SHALL BE GIVEN THE OPPORTUNITY TO ACCOMPANY THE COMMISSIONER DURING AN INSPECTION FOR THE PURPOSE OF AIDING SUCH INSPECTION. A LABOR UNION HAVING A COLLECTIVE BARGAINING RELATIONSHIP WITH THE EMPLOYER SHALL BE CONSIDERED AN EMPLOYEE REPRESENTATIVE FOR THE PURPOSES OF THIS SECTION. WHERE THERE IS NO DESIGNATED EMPLOYEE REPRESENTATIVE, THE COMMISSIONER SHALL CONSULT WITH A REASONABLE NUMBER OF EMPLOYEES CONCERNING MATTERS OF SAFETY AND HEALTH IN THE WORKPLACE. 4. THE AUTHORITY OF THE COMMISSIONER TO INSPECT PREMISES PURSUANT TO AN EMPLOYEE COMPLAINT SHALL NOT BE LIMITED TO THE ALLEGED VIOLATION CONTAINED IN SUCH COMPLAINT. THE COMMISSIONER MAY INSPECT ANY OTHER AREA OF THE PREMISES IN WHICH HE OR SHE HAS REASON TO BELIEVE THAT A VIOLATION OF THIS ARTICLE EXISTS. 5. NO EMPLOYEE OR DESIGNATED EMPLOYEE REPRESENTATIVE WHO ACCOMPANIES THE COMMISSIONER ON AN INSPECTION SHALL SUFFER ANY REDUCTION IN WAGES AS A RESULT OF HIS OR HER PARTICIPATION IN SUCH INSPECTION. S. 8922 9 6. THE COMMISSIONER MAY, UPON HIS OR HER OWN INITIATIVE, CONDUCT AN INSPECTION OF ANY PREMISES OCCUPIED BY AN EMPLOYER IF THE COMMISSIONER HAS REASON TO BELIEVE THAT A VIOLATION OF THIS ARTICLE HAS OCCURRED OR IF THE COMMISSIONER HAS A BASIS FOR SUCH INSPECTION. 7. NOTWITHSTANDING ANY OTHER PROVISIONS OF LAW, WHEN A REQUEST FOR AN INSPECTION HAS BEEN MADE IN A SITUATION WHERE THERE IS AN ALLEGATION OF AN IMMINENT DANGER SUCH THAT AN EMPLOYEE WOULD BE SUBJECTING HIMSELF OR HERSELF TO SERIOUS INJURY OR DEATH BECAUSE OF THE HAZARDOUS CONDITION IN THE WORKPLACE, THE INSPECTION SHALL BE CARRIED OUT IMMEDIATELY. 8. IF THE COMMISSIONER DETERMINES THAT AN EMPLOYER HAS VIOLATED A PROVISION OF THIS ARTICLE, OR A SAFETY OR HEALTH STANDARD OR REGULATION PROMULGATED PURSUANT TO THIS ARTICLE, HE OR SHE SHALL, WITHIN SIX MONTHS OF BECOMING AWARE OF SUCH VIOLATION, ISSUE TO THE EMPLOYER AN ORDER TO COMPLY WHICH SHALL DESCRIBE PARTICULARLY THE NATURE OF THE VIOLATION, INCLUDING A REFERENCE TO THE PROVISION OF THE SECTION, STANDARD, REGU- LATION OR ORDER ALLEGED TO HAVE BEEN VIOLATED, FIX A REASONABLE TIME FOR COMPLIANCE, AND ESTABLISH A PENALTY EQUIVALENT TO THE APPROPRIATE PENAL- TIES REQUIRED PURSUANT TO SECTION 17 OF THE FEDERAL OCCUPATIONAL SAFETY AND HEALTH ACT (29 USC 666). AN EMPLOYER WHO FAILS TO CORRECT A NON-SER- IOUS VIOLATION BY THE TIME FIXED FOR COMPLIANCE MAY BE ASSESSED A CIVIL PENALTY PURSUANT TO 29 USC 666 PER DAY UNTIL THE VIOLATION IS CORRECTED. AN EMPLOYER WHO FAILS TO CORRECT A SERIOUS VIOLATION BY THE TIME FIXED FOR COMPLIANCE MAY BE ASSESSED A CIVIL PENALTY PURSUANT TO 29 USC 666 UNTIL THE VIOLATION IS CORRECTED. A SERIOUS VIOLATION SHALL BE DEEMED TO EXIST IN A PLACE OF EMPLOYMENT IF THERE IS A SUBSTANTIAL PROBABILITY THAT DEATH OR SERIOUS PHYSICAL HARM COULD RESULT FROM A CONDITION WHICH EXISTS OR FROM ONE OR MORE PRACTICES, MEANS, METHODS, OPERATIONS, OR PROCESSES WHICH HAVE BEEN ADOPTED OR ARE IN USE IN SUCH PLACE OF EMPLOY- MENT UNLESS THE EMPLOYER DID NOT, AND COULD NOT WITH THE EXERCISE OF REASONABLE DILIGENCE, KNOW OF THE PRESENCE OF THE VIOLATION. A NON-SERI- OUS VIOLATION SHALL BE DEFINED AS ANY VIOLATION THAT DOES NOT FALL UNDER THE DEFINITION OF SERIOUS VIOLATION. 9. WHERE THE COMMISSIONER ISSUES TO AN EMPLOYER AN ORDER TO COMPLY, THE EMPLOYER SHALL POST SUCH ORDER OR A COPY THEREOF IN A CONSPICUOUS PLACE AT OR NEAR EACH PLACE OF VIOLATION CITED IN THE ORDER. THE ORDER SHALL BE PLACED WHERE IT IS CLEARLY VISIBLE TO AFFECTED EMPLOYEES AND COPIES SHALL BE PROVIDED TO EMPLOYEES, ON REQUEST, AND TO THE DESIGNATED REPRESENTATIVES OF ALL AFFECTED EMPLOYEES. THE COMMISSIONER SHALL MAKE SUCH ORDER AVAILABLE TO EMPLOYEE REPRESENTATIVES AND PROVIDE A PLAIN ENGLISH SUMMARY OF THE ORDER TO ALL WORKERS. 10. ANY EMPLOYER OR OTHER PARTY AFFECTED BY A DETERMINATION OF THE COMMISSIONER ISSUED PURSUANT TO THIS SECTION, INCLUDING AFFECTED EMPLOY- EES AND THEIR DESIGNATED REPRESENTATIVES, MAY PETITION THE INDUSTRIAL BOARD OF APPEALS FOR REVIEW OF SUCH DETERMINATION IN ACCORDANCE WITH SECTION ONE HUNDRED ONE OF THIS CHAPTER. JUDICIAL REVIEW OF THE DECISION OF THE INDUSTRIAL BOARD OF APPEALS MAY BE OBTAINED BY ANY PARTY AFFECTED BY SUCH DECISION BY COMMENCING A PROCEEDING PURSUANT TO ARTICLE SEVEN- TY-EIGHT OF THE CIVIL PRACTICE LAW AND RULES WITHIN SIXTY DAYS AFTER SUCH DECISION IS ISSUED. AN APPEAL OF ANY VIOLATION CLASSIFIED AND CITED AS SERIOUS, WILLFUL, REPEATED SERIOUS VIOLATION, OR FAILURE TO ABATE A SERIOUS VIOLATION SHALL NOT STAY ABATEMENT DATES AND REQUIREMENTS. EMPLOYEES AFFECTED BY THE VIOLATION COVERED BY SUCH DETERMINATION SHALL BE GRANTED STATUS AS PARTIES TO: PARTICIPATE IN THE BOARD'S PROCEEDINGS; REVIEW ANY ASPECT OF THE COMMISSIONER'S DETERMINATIONS; AND REQUEST OF THE ISSUANCE OF SUBPOENAS TO COMPEL THE ATTENDANCE OF WITNESSES, PRODUCTION OF DOCUMENTS, PERMISSION TO ENTER UPON LAND, INTERROGATORIES S. 8922 10 AND DEPOSITIONS FROM AFFECTED EMPLOYERS AND FROM THE DEPARTMENT PURSUANT TO SECTION ONE HUNDRED OF THIS CHAPTER. THE BOARD SHALL GRANT SUCH REQUESTS EXCEPT THAT REQUESTS FOR DEPOSITIONS SHALL BE GRANTED BY THE BOARD UPON A REQUEST STATING GOOD AND JUST REASONS. 11. IF THE TIME FOR COMPLIANCE WITH AN ORDER OF THE COMMISSIONER ISSUED PURSUANT TO THIS SECTION HAS ELAPSED AND THE EMPLOYER HAS NOT COMPLIED WITH THE PROVISIONS OF THE ORDER, THE COMMISSIONER SHALL SEEK JUDICIAL ENFORCEMENT OF SUCH ORDER BY COMMENCING A PROCEEDING PURSUANT TO ARTICLE SEVENTY-EIGHT OF THE CIVIL PRACTICE LAW AND RULES. 12. (A) THE STATE SUPREME COURT SHALL HAVE JURISDICTION, UPON PETITION OF THE COMMISSIONER, PURSUANT TO THE CIVIL PRACTICE LAW AND RULES TO RESTRAIN ANY VIOLATIONS, CONDITIONS OR PRACTICES PROHIBITED BY THIS ARTICLE IN ANY EMPLOYER COVERED BY THIS ARTICLE WHICH ARE SUCH THAT A DANGER EXISTS WHICH COULD REASONABLY BE EXPECTED TO CAUSE DEATH OR SERI- OUS PHYSICAL HARM IMMEDIATELY OR BEFORE THE IMMINENCE OF SUCH DANGER CAN BE ELIMINATED THROUGH THE ABATEMENT PROCEDURES OTHERWISE PROVIDED FOR BY THIS ARTICLE. SUCH PROCEEDING SHALL BE BROUGHT IN THE COUNTY IN WHICH THE VIOLATION IS ALLEGED TO EXIST. ANY ORDER ISSUED UNDER THIS SECTION MAY REQUIRE SUCH STEPS TO BE TAKEN AS MAY BE NECESSARY TO AVOID, CORRECT OR REMOVE SUCH IMMINENT DANGER AND PROHIBIT THE EMPLOYMENT OR PRESENCE OF ANY INDIVIDUAL IN LOCATIONS OR UNDER CONDITIONS WHERE SUCH IMMINENT DANGER EXISTS, EXCEPT INDIVIDUALS WHOSE PRESENCE IS NECESSARY TO AVOID, CORRECT, OR REMOVE SUCH IMMINENT DANGER OR TO MAINTAIN THE CAPACITY OF A CONTINUOUS PROCESS OPERATION TO RESUME NORMAL OPERATIONS WITHOUT A COMPLETE CESSATION OF OPERATIONS, OR WHERE A CESSATION OF OPERATIONS IS NECESSARY, TO PERMIT SUCH TO BE ACCOMPLISHED IN A SAFE AND ORDERLY MANNER. THE EMPLOYER MAY CONTEST SUCH ORDER PURSUANT TO THE CIVIL PRAC- TICE LAW AND RULES. (B) WHENEVER AND AS SOON AS AN INSPECTOR CONCLUDES THAT CONDITIONS OR PRACTICES DESCRIBED IN PARAGRAPH (A) OF THIS SUBDIVISION EXIST IN ANY PLACE OF EMPLOYMENT COVERED BY THIS ARTICLE, THE INSPECTOR SHALL INFORM THE AFFECTED EMPLOYEES AND EMPLOYERS OF THE DANGER AND OF THE RECOMMEN- DATION TO THE COMMISSIONER THAT RELIEF BE SOUGHT. (C) IF THE COMMISSIONER FAILS TO SEEK RELIEF UNDER THIS SUBDIVISION WITHIN FORTY-EIGHT HOURS OF BEING NOTIFIED OF SUCH CONDITION, ANY EMPLOYEE WHO MAY BE INJURED BY REASON OF SUCH FAILURE, OR THE AUTHORIZED EMPLOYEE REPRESENTATIVE OF SUCH EMPLOYEE, MAY SEEK INJUNCTIVE RELIEF AS PROVIDED IN PARAGRAPH (A) OF THIS SUBDIVISION. 13. THE COMMISSIONER SHALL PROVIDE A REPORT TO THE LEGISLATURE ONE YEAR AFTER THE EFFECTIVE DATE OF THIS SECTION, AND ANNUALLY THEREAFTER. THE REPORT SHALL INCLUDE ALL RELEVANT INFORMATION REGARDING IMPLEMENTA- TION AND ENFORCEMENT OF THIS ARTICLE, INCLUDING BUT NOT LIMITED TO THE NUMBER OF CLAIMS FILED WITH THE COMMISSIONER UNDER THIS ARTICLE, DATA ON WAREHOUSE PRODUCTION QUOTAS IN WAREHOUSES IN WHICH ANNUAL EMPLOYEE INJU- RY RATES ARE ABOVE THE INDUSTRY AVERAGE, AND THE NUMBER OF INVESTI- GATIONS UNDERTAKEN AND ENFORCEMENT ACTIONS INITIATED, PER EMPLOYER AND PER WORKSITE. 14. IF A PARTICULAR WORKSITE OR EMPLOYER IS FOUND TO HAVE AN ANNUAL EMPLOYEE INJURY RATE AT LEAST ONE AND ONE-HALF TIMES AS HIGH AS THE WAREHOUSING INDUSTRY'S AVERAGE ANNUAL INJURY RATE, THE COMMISSIONER SHALL CONDUCT AN INVESTIGATION OF VIOLATIONS PURSUANT TO THIS ARTICLE. 15. THE COMMISSIONER SHALL HAVE THE AUTHORITY TO ADOPT RULES AND REGU- LATIONS RELATING TO THE PROCEDURES FOR AN EMPLOYEE TO MAKE A COMPLAINT ALLEGING A VIOLATION OF THIS ARTICLE. 16. IN ANY SUCCESSFUL ACTION BROUGHT BY THE COMMISSIONER TO ENFORCE THIS ARTICLE, THE COURT MAY GRANT INJUNCTIVE RELIEF IN ORDER TO OBTAIN S. 8922 11 COMPLIANCE WITH THIS ARTICLE AND SHALL AWARD COSTS AND REASONABLE ATTOR- NEY'S FEES. § 789. PRIVATE RIGHT OF ACTION. A CURRENT OR FORMER EMPLOYEE OR HIS OR HER REPRESENTATIVE MAY BRING AN ACTION FOR INJUNCTIVE RELIEF TO OBTAIN COMPLIANCE WITH THIS ARTICLE AND MAY, UPON PREVAILING IN THE ACTION, RECOVER COSTS AND REASONABLE ATTORNEY'S FEES IN SUCH ACTION. IN ANY ACTION INVOLVING A QUOTA THAT PREVENTED THE COMPLIANCE WITH APPLICABLE REGULATIONS ON WORKPLACE SAFETY AND HEALTH OR MEAL OR REST BREAK REQUIREMENTS, THE INJUNCTIVE RELIEF SHALL BE LIMITED TO SUSPENSION OF THE QUOTA AND RESTITUTION AND INJUNCTIVE RELIEF TO ADDRESS ANY RETALI- ATION OR OTHER ADVERSE ACTION TAKEN BY THE EMPLOYER IN RELATION TO THE COMPLAINT OR ITS ENFORCEMENT. IN ANY ACTION INVOLVING A RETALIATION IN VIOLATION OF SECTION SEVEN HUNDRED EIGHTY-SIX OF THIS ARTICLE, IN ADDI- TION TO THE RELIEF AUTHORIZED ABOVE, A PREVAILING CURRENT OR FORMER EMPLOYEE OR HIS OR HER REPRESENTATIVE SHALL BE AWARDED DAMAGES EQUAL TO THE GREATER OF TEN THOUSAND DOLLARS OR THREE TIMES THE ACTUAL DAMAGES, INCLUDING, BUT NOT LIMITED TO, UNPAID WAGES AND BENEFITS. § 790. RECORDS. ANY RECORDS COLLECTED BY THE STATE IN ANY INVESTI- GATIONS UNDER THIS ARTICLE SHALL BE MADE PUBLIC, WITHOUT ANY RESTRICTION REGARDING CONFIDENTIALITY, OTHER THAN A RESTRICTION ON THE RELEASE OF PERSONALLY IDENTIFIABLE INFORMATION FOR INDIVIDUAL NON-SUPERVISORY EMPLOYEES. ALL RECORDS MAINTAINED BY THE EMPLOYER UNDER THIS ARTICLE SHALL BE MADE FREELY AVAILABLE TO EMPLOYEES AND THEIR REPRESENTATIVES ON REQUEST, WITHIN TWO BUSINESS DAYS OF SUCH REQUEST, AT NO COST TO EMPLOY- EES OR THEIR REPRESENTATIVES. § 791. OTHER POWERS. THE ATTORNEY GENERAL, EITHER UPON HIS OR HER OWN COMPLAINT OR THE COMPLAINT OF ANY PERSON ACTING FOR THEMSELVES OR THE GENERAL PUBLIC, HAS THE AUTHORITY TO PROSECUTE ACTIONS, EITHER CIVIL OR CRIMINAL, FOR VIOLATIONS OF THIS ARTICLE, OR TO ENFORCE THE PROVISIONS THEREOF INDEPENDENTLY AND WITHOUT SPECIFIC DIRECTION OF THE COMMISSION- ER. § 4. Severability. If any provision of this act, or any application of any provision of this act, is held to be invalid, that shall not affect the validity or effectiveness of any other provision of this act, or of any other application of any provision of this act, which can be given effect without that provision or application; and to that end, the provisions and applications of this act are severable. § 5. This act shall take effect on the sixtieth day after it shall have become a law.
Co-Sponsors
Jamaal T. Bailey
(D) 36th Senate District
Alessandra Biaggi
(D, WF) 0 Senate District
Cordell Cleare
(D) 30th Senate District
Leroy Comrie
(D) 14th Senate District
- view additional co-sponsors
James Gaughran
(D) 0 Senate District
Michael Gianaris
(D, WF) 12th Senate District
Andrew Gounardes
(D) 26th Senate District
Michelle Hinchey
(D, WF) 41st Senate District
Brad Hoylman-Sigal
(D, WF) 47th Senate District
Robert Jackson
(D, WF) 31st Senate District
Brian Kavanagh
(D) 27th Senate District
Timothy M. Kennedy
(D, WF) 63rd Senate District
John C. Liu
(D) 16th Senate District
Rachel May
(D, WF) 48th Senate District
Zellnor Myrie
(D) 20th Senate District
Roxanne J. Persaud
(D) 19th Senate District
Elijah Reichlin-Melnick
(D, WF) 0 Senate District
Gustavo Rivera
(D, WF) 33rd Senate District
Sean M. Ryan
(D) 61st Senate District
Julia Salazar
(D, WF) 18th Senate District
Diane J. Savino
(D, IP) 0 Senate District
Luis R. Sepúlveda
(D) 32nd Senate District
S8922A (ACTIVE) - Details
- See Assembly Version of this Bill:
- A10020
- Law Section:
- Labor Law
- Laws Affected:
- Add Art 21-A §§780 - 788, Lab L
S8922A (ACTIVE) - Summary
Establishes the warehouse worker protection act; requires employers to provide a written description of quotas to which employees are subject and states that employees shall not be required to meet quotas that prevent compliance with meal or rest periods, or use of bathroom facilities.
S8922A (ACTIVE) - Sponsor Memo
BILL NUMBER: S8922A REVISED 5/27/22 SPONSOR: RAMOS TITLE OF BILL: An act to amend the labor law, in relation to establishing the warehouse worker protection act PURPOSE: Relates to the creation of a program to protect workers from unreason- able quotas via a new section of Labor Law. This bill will support ware- house workers who currently have no protections from inhumane work quotas. SUMMARY OF PROVISIONS: Section 1: This Act shall be known as the "warehouse worker protection act" Section 2: Legislative findings.
Section 3: The labor law is amended by adding a new article 21-a as follows: Section 780 Definitions. Provides all definitions. Section 781 Quotas. Establishes transparency standards for the provision to each employee the quota to which they are subject and any consequences for failure to meet the quota. Section 782 Protection from Quotas. Quotas may not interfere with a worker meeting basic human needs, like meal or rest periods and use of bathroom. Section 783 Time on Task. 1. Paid and unpaid breaks are not considered productive time for the purpose of any quota. Section 784 Recordkeeping. Each employer shall track and preserve records related to, a. Each employees work speed data, b. Aggregate work speed data, and c. Written descriptions of quotas. Section 785 Right to Request. 1. Current employees have the right to request data relevant to the employee's quota. 2. Former employees may request within three years of separation from employer data relevant to the employee's quota. 3. Records shall be provided at no cost to current or former employee. 4. Employers shall provide quota descriptions no later than two days after request. Employers shall provide personal work speed data and aggregated work speed no later than seven business days following the request. 5. Employers are not required to use quotas or monitor work speed data. If an employer does not monitor, then no obligation to provide it upon request. Section 786. Unlawful Retaliation. 1. No person shall retaliate against a person for exercising rights conferred under this act, including; a. Initiating a request for infor- mation; b. Making a complaint related to a quota; 2. Employees do not need to refer to this Act to be protected. 3. Rebuttable presumption if adverse action taken against a worker with- in 90 days of engaging in activities protected by this Act. Clear and convincing evidence must show that, a. The adverse action was taken for other permissible reasons; and b. The activities protected by this act were not a motivating factor in adverse action. Section 787. Enforcement. 1. Commissioner shall adopt rules and regulations implementing this article, shall be authorized to enforce this article, and to assess civil penalties consistent to sections 213, 215 and 218 of this chapter. Section 788. Other Powers. The Attorney General may prosecute actions for violations of this section. Section 4. Severability. Provisions are severable. Section 5. Effective Date. 60 days after it becomes law. JUSTIFICATION: The rapid growth of same and next-day consumer package delivery, and advances in technology used for tracking employee productivity, have led to a rise in the number of warehouse and distribution center workers who are subject to quantified work quotas. Warehouse and distribution center employees who work under those quotas are expected to complete a quanti- fied number of tasks within specific time periods, often measured down to the minute or second, and face adverse employment action, including suspension or termination, if they fail to do so. Those quotas generally do not allow for workers to comply with safety guidelines or to recover from strenuous activity during productive work time, leaving warehouse and distribution center employees who work under them at high risk of injury and illness. Quotas in occupations that are already physically demanding incentivize unsafe work, resulting in an increase in injuries. The workforce in warehouse and logistics is largely comprised of people of color who depend upon these jobs to provide for their families and often see no alternative but to prioritize quota compliance over their own safety. These workers end up working faster than is healthy in order to keep their jobs. According to the most recent data (2020) released by the Bureau of Labor Statistics, the warehouse industry itself reports a rate of serious work-related injuries involving lost time or restricted duty (4.0 cases/100 full-time workers) that is more than twice the average injury rates for all private industry (1.7 cases/100 FTE's). The most common types of work-related serious injury reported by employers in the warehouse sector are musculoskeletal injuries (MSDs), which often require workers to miss work and can force workers permanently out of the job and even out of the workforce. Warehouse companies often require workers to perform fast paced manual material handling tasks. These involve well-known risk factors for seri- ous injury such as rapid pace, repetitive forceful exertions like lift- ing heavy packages, and awkward postures like twisting/bending, and combinations thereof that are likely to cause MSDs. Scientific evidence shows that effective ergonomic interventions --such as reducing the pace, package weights and stressful postures-- can lower the incidence and severity of work-related MSDs. The research is clear that the most effective method for reducing or eliminating these risk factors is to implement an ergonomics program that includes well-informed analysis of the worksite, implementation of solutions to reduce the dangerous risk factors, professionally competent medical management, effective worker training, and meaningful involvement by workers and their represen- tatives in all aspects of the program. This legislation puts safeguards on the algorithms which are monitoring, punishing and pushing workers to burn out or get injured. The legis- lation prevents the algorithm from placing workloads on employees that could injure the worker. Every workplace will have an ergonomic assess- ment of all tasks and based on that assessment will be provided safe workloads. Second, the bill creates penalties and enforcement mechanism at DOL against workers are provided access to the quotas and algorithms that are regulating their work; LEGISLATIVE HISTORY: New Bill FISCAL IMPLICATIONS: FY 2023: N/A EFFECTIVE DATE: This act shall take effect 60 days after it shall become law.
S8922A (ACTIVE) - Bill Text download pdf
S T A T E O F N E W Y O R K ________________________________________________________________________ 8922--A I N S E N A T E April 28, 2022 ___________ Introduced by Sens. RAMOS, BAILEY, CLEARE, GAUGHRAN, GIANARIS, GOUNARDES, HINCHEY, HOYLMAN, KAVANAGH, KENNEDY, PERSAUD, REICHLIN-MEL- NICK, RIVERA, SALAZAR, SAVINO, SEPULVEDA -- read twice and ordered printed, and when printed to be committed to the Committee on Labor -- committee discharged, bill amended, ordered reprinted as amended and recommitted to said committee AN ACT to amend the labor law, in relation to establishing the warehouse worker protection act THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM- BLY, DO ENACT AS FOLLOWS: Section 1. This act shall be known and may be cited as the "warehouse worker protection act". § 2. Legislative findings. The legislature finds and declares that: (a) The rapid growth of just-in-time logistics and same- and next-day consumer package delivery, and advances in technology used for tracking employee productivity, have led to a rise in the number of warehouse and distribution center workers who are subject to quantified work quotas. (b) Warehouse and distribution center employees who work under such quotas are expected to complete a quantified number of tasks within specific time periods, often measured down to the minute or second, and face adverse employment action, including suspension or termination, if they fail to do so. (c) Those quotas generally do not allow for workers to comply with safety guidelines or to recover from strenuous activity during produc- tive work time, leaving warehouse and distribution center employees who work under them at high risk of injury and illness. (d) The quotas under which warehouse and distribution center employees regularly work also affect their compensation. Warehouse and distrib- ution center employees who work under a quota may not receive the full benefit of minimum wages if their quota is increased to make up for the direct or indirect effect of a minimum-wage increase. (e) Quotas in occupations that are already physically demanding incen- tivize unsafe work, resulting in an increase in injuries. The workforce in warehouse and logistics is largely comprised of people of color who EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets [ ] is old law to be omitted.
LBD15159-03-2 S. 8922--A 2 depend upon these jobs to provide for their families and often see no alternative but to prioritize quota compliance over their own safety. These workers end up working faster than is healthy in order to keep their jobs. (f) Workplace injuries can take a terrible toll on workers, their families and their communities, and can create substantial costs for employers. According to the most recent data (2020) released by the Bureau of Labor Statistics, the warehouse industry itself reports a rate of serious work-related injuries involving lost time or restricted duty (4.0 cases/100 full-time workers) that is more than twice the average injury rates for all private industry (1.7 cases/100 full-time workers). The most common types of work-related serious injury reported by employ- ers in the warehouse sector are musculoskeletal injuries, which often require workers to miss work and can force workers permanently out of the job and even out of the workforce. § 3. The labor law is amended by adding a new article 21-A to read as follows: ARTICLE 21-A WAREHOUSE WORKER PROTECTION ACT SECTION 780. DEFINITIONS. 781. QUOTAS. 782. PROTECTION FROM QUOTAS. 783. TIME ON TASK. 784. RECORDKEEPING. 785. RIGHT TO REQUEST. 786. UNLAWFUL RETALIATION. 787. ENFORCEMENT. 788. OTHER POWERS. § 780. DEFINITIONS. AS USED IN THIS ARTICLE: 1. "DEFINED TIME PERIOD" MEANS ANY UNIT OF TIME MEASUREMENT EQUAL TO OR LESS THAN THE DURATION OF AN EMPLOYEE'S SHIFT, AND INCLUDES HOURS, MINUTES, AND SECONDS AND ANY FRACTION THEREOF. 2. "DESIGNATED EMPLOYEE REPRESENTATIVE" MEANS ANY EMPLOYEE REPRESEN- TATIVE, INCLUDING BUT NOT LIMITED TO AN AUTHORIZED EMPLOYEE REPRESEN- TATIVE THAT HAS A COLLECTIVE BARGAINING RELATIONSHIP WITH THE EMPLOYER. 3. "EMPLOYEE" MEANS A NONEXEMPT AND NON-ADMINISTRATIVE EMPLOYEE WHO WORKS AT A WAREHOUSE DISTRIBUTION CENTER AND IS SUBJECT TO A QUOTA AS DEFINED IN THIS SECTION. 4. (A) "EMPLOYEE WORK SPEED DATA" MEANS INFORMATION AN EMPLOYER COLLECTS, STORES, ANALYZES, OR INTERPRETS RELATING TO AN INDIVIDUAL EMPLOYEE'S PERFORMANCE OF A QUOTA, INCLUDING, BUT NOT LIMITED TO, QUAN- TITIES OF TASKS PERFORMED, QUANTITIES OF ITEMS OR MATERIALS HANDLED OR PRODUCED, RATES OR SPEEDS OF TASKS PERFORMED, MEASUREMENTS OR METRICS OF EMPLOYEE PERFORMANCE IN RELATION TO A QUOTA, AND TIME CATEGORIZED AS PERFORMING TASKS OR NOT PERFORMING TASKS. (B) "AGGREGATED DATA" MEANS INFORMATION THAT AN EMPLOYER HAS COMBINED OR COLLECTED TOGETHER IN SUMMARY OR OTHER FORM SUCH THAT THE DATA CANNOT BE IDENTIFIED WITH ANY INDIVIDUAL. 5. "EMPLOYER" MEANS A PERSON WHO DIRECTLY OR INDIRECTLY, OR THROUGH AN AGENT OR ANY OTHER PERSON, INCLUDING THROUGH THE SERVICES OF A THIRD- PARTY EMPLOYER, TEMPORARY SERVICES, OR STAFFING AGENCY, INDEPENDENT CONTRACTOR, OR ANY SIMILAR ENTITY, 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. S. 8922--A 3 FOR THE PURPOSES OF THIS SUBDIVISION: (A) ALL EMPLOYEES EMPLOYED DIRECTLY OR INDIRECTLY, OR THROUGH AN AGENT OR ANY OTHER PERSON, AS DESCRIBED IN THE OPENING PARAGRAPH OF THIS SUBDIVISION, AS WELL AS ANY EMPLOYEE EMPLOYED BY A MEMBER OF A CONTROLLED GROUP OF CORPORATIONS OF WHICH THE EMPLOYER IS A MEMBER, SHALL BE COUNTED IN DETERMINING THE NUMBER OF EMPLOYEES EMPLOYED AT A SINGLE WAREHOUSE DISTRIBUTION CENTER OR AT ONE OR MORE WAREHOUSE DISTRIBUTION CENTERS IN THE STATE; AND (B) ALL AGENTS OR OTHER PERSONS, AS DESCRIBED IN THE OPENING PARAGRAPH OF THIS SUBDIVISION, AND ALL MEMBERS OF A CONTROLLED GROUP OF CORPORATIONS OF WHICH THE EMPLOYER IS A MEMBER, SHALL BE DEEMED TO BE EMPLOYERS AND SHALL BE JOINTLY AND SEVERALLY RESPONSIBLE FOR COMPLIANCE WITH THIS ARTICLE. FOR PURPOSES OF THIS SUBDIVISION, THE TERM "CONTROLLED GROUP OF CORPORATIONS" SHALL BE DEFINED AS PROVIDED UNDER SECTION 1563 OF THE INTERNAL REVENUE CODE, 26 U.S.C. SECTION 1563, EXCEPT THAT FIFTY PERCENT SHALL BE SUBSTITUTED FOR EIGHTY PERCENT WHERE EIGHTY PERCENT IS SPECIFIED IN THAT DEFINITION. 6. "PERSON" MEANS AN INDIVIDUAL, CORPORATION, PARTNERSHIP, LIMITED PARTNERSHIP, LIMITED LIABILITY PARTNERSHIP, LIMITED LIABILITY COMPANY, BUSINESS TRUST, ESTATE, TRUST, ASSOCIATION, JOINT VENTURE, AGENCY, INSTRUMENTALITY, OR ANY OTHER LEGAL OR COMMERCIAL ENTITY, WHETHER DOMES- TIC OR FOREIGN. 7. "QUOTA" MEANS A WORK STANDARD WHICH: (A) AN EMPLOYEE IS ASSIGNED OR REQUIRED TO PERFORM: (I) AT A SPECIFIED PRODUCTIVITY SPEED; OR A QUANTIFIED NUMBER OF TASKS, OR TO HANDLE OR PRODUCE A QUANTIFIED AMOUNT OF MATERIAL, WITHIN A DEFINED TIME PERIOD; OR (B) AN EMPLOYEE'S ACTIONS ARE CATEGORIZED BETWEEN TIME PERFORMING TASKS AND NOT PERFORMING TASKS, AND THE EMPLOYEE'S FAILURE TO COMPLETE A TASK PERFORMANCE STANDARD OR RECOMMENDATION MAY HAVE AN ADVERSE IMPACT ON THE EMPLOYEE'S CONTINUED EMPLOYMENT OR THE CONDITIONS OF SUCH EMPLOY- MENT. 8. "WAREHOUSE DISTRIBUTION CENTER" MEANS AN ESTABLISHMENT AS DEFINED BY ANY OF THE FOLLOWING NORTH AMERICAN INDUSTRY CLASSIFICATION SYSTEM ("NAICS") CODES, HOWEVER SUCH ESTABLISHMENT IS DENOMINATED: (A) FOUR HUNDRED NINETY-THREE FOR WAREHOUSING AND STORAGE; (B) FOUR HUNDRED TWENTY-THREE FOR MERCHANT WHOLESALERS, DURABLE GOODS; (C) FOUR HUNDRED TWENTY-FOUR FOR MERCHANT WHOLESALERS, NONDURABLE GOODS; (D) FOUR HUNDRED FIFTY-FOUR THOUSAND ONE HUNDRED TEN FOR ELECTRONIC SHOPPING AND MAIL-ORDER HOUSES; OR (E) FOUR HUNDRED NINETY-TWO THOUSAND ONE HUNDRED TEN FOR COURIERS AND EXPRESS DELIVERY SERVICES. § 781. QUOTAS. EACH EMPLOYER SHALL PROVIDE TO EACH EMPLOYEE, UPON HIRE, OR WITHIN THIRTY DAYS OF THE EFFECTIVE DATE OF THIS ARTICLE, A WRITTEN DESCRIPTION OF EACH QUOTA TO WHICH THE EMPLOYEE IS SUBJECT, INCLUDING THE QUANTIFIED NUMBER OF TASKS TO BE PERFORMED OR MATERIALS TO BE PRODUCED OR HANDLED, WITHIN THE DEFINED TIME PERIOD, AND ANY POTEN- TIAL ADVERSE EMPLOYMENT ACTION THAT COULD RESULT FROM FAILURE TO MEET THE QUOTA. EACH TIME THE QUOTA CHANGES THEREAFTER, THE EMPLOYER SHALL PROVIDE AN UPDATED WRITTEN DESCRIPTION OF EACH QUOTA TO WHICH THE EMPLOYEE IS SUBJECT WITHIN TWO BUSINESS DAYS OF SUCH QUOTA CHANGE. EACH TIME AN EMPLOYER TAKES AN ADVERSE EMPLOYMENT ACTION AGAINST AN EMPLOYEE, THE EMPLOYER SHALL PROVIDE THAT EMPLOYEE WITH THE APPLICABLE QUOTA FOR THE EMPLOYEE. § 782. PROTECTION FROM QUOTAS. AN EMPLOYEE SHALL NOT BE REQUIRED TO MEET A QUOTA THAT PREVENTS COMPLIANCE WITH MEAL OR REST PERIODS OR USE S. 8922--A 4 OF BATHROOM FACILITIES, INCLUDING REASONABLE TRAVEL TIME TO AND FROM BATHROOM FACILITIES. AN EMPLOYER SHALL NOT TAKE ADVERSE EMPLOYMENT ACTION AGAINST AN EMPLOYEE FOR FAILURE TO MEET A QUOTA THAT DOES NOT ALLOW A WORKER TO COMPLY WITH MEAL AND REST PERIODS OR FOR FAILURE TO MEET A QUOTA THAT HAS NOT BEEN DISCLOSED TO THE EMPLOYEE PURSUANT TO SECTION SEVEN HUNDRED EIGHTY-ONE OF THIS ARTICLE. § 783. TIME ON TASK. CONSISTENT WITH EXISTING LAW, PAID AND UNPAID BREAKS SHALL NOT BE CONSIDERED PRODUCTIVE TIME FOR THE PURPOSE OF ANY QUOTA OR MONITORING SYSTEM UNLESS THE EMPLOYEE IS REQUIRED TO REMAIN ON CALL. § 784. RECORDKEEPING. 1. EACH EMPLOYER SHALL ESTABLISH, MAINTAIN, AND PRESERVE CONTEMPORANEOUS, TRUE, AND ACCURATE RECORDS OF THE FOLLOWING: (A) EACH EMPLOYEE'S OWN PERSONAL WORK SPEED DATA; (B) THE AGGREGATED WORK SPEED DATA FOR SIMILAR EMPLOYEES AT THE SAME ESTABLISHMENT; AND (C) THE WRITTEN DESCRIPTIONS OF THE QUOTA SUCH EMPLOYEE WAS PROVIDED PURSU- ANT TO SECTION SEVEN HUNDRED EIGHTY-ONE OF THIS ARTICLE. SUCH RECORDS SHALL BE MAINTAINED AND PRESERVED THROUGHOUT THE DURATION OF EACH EMPLOYEE'S PERIOD OF EMPLOYMENT AND MADE AVAILABLE TO THE COMMISSIONER UPON REQUEST. 2. SUBSEQUENT TO ANY EMPLOYEE'S SEPARATION FROM THE EMPLOYER, SUCH RECORDS RELATING TO THE SIX MONTH PERIOD PRIOR TO THE DATE OF THE EMPLOYEE'S SEPARATION FROM THE EMPLOYER SHALL BE PRESERVED FOR A PERIOD OF TIME NOT LESS THAN THREE YEARS SUBSEQUENT TO THE DATE OF SUCH EMPLOY- EE'S SEPARATION AND MADE AVAILABLE TO THE COMMISSIONER UPON REQUEST. NOTHING IN THIS SECTION SHALL REQUIRE AN EMPLOYER TO KEEP SUCH RECORDS IF SUCH EMPLOYER DOES NOT USE QUOTAS AS DEFINED IN THIS ARTICLE OR MONI- TOR WORK SPEED DATA. § 785. RIGHT TO REQUEST. 1. A CURRENT EMPLOYEE HAS THE RIGHT TO REQUEST A WRITTEN DESCRIPTION OF EACH QUOTA TO WHICH THE EMPLOYEE IS SUBJECT, A COPY OF THE EMPLOYEE'S OWN PERSONAL WORK SPEED DATA, AND A COPY OF THE PRIOR SIX MONTHS OF AGGREGATED WORK SPEED DATA FOR SIMILAR EMPLOYEES AT THE SAME ESTABLISHMENT. 2. A FORMER EMPLOYEE HAS THE RIGHT TO REQUEST, WITHIN THREE YEARS SUBSEQUENT TO THE DATE OF HIS OR HER SEPARATION FROM THE EMPLOYER, A WRITTEN DESCRIPTION OF THE QUOTA TO WHICH THEY WERE SUBJECT AS OF THE DATE OF THEIR SEPARATION, A COPY OF THE EMPLOYEE'S OWN PERSONAL WORK SPEED DATA FOR THE SIX MONTHS PRIOR TO THEIR DATE OF SEPARATION, AND A COPY OF AGGREGATED WORK SPEED DATA FOR SIMILAR EMPLOYEES AT THE SAME ESTABLISHMENT FOR THE SIX MONTHS PRIOR TO THEIR DATE OF SEPARATION. 3. SUCH REQUESTED RECORDS PURSUANT TO THIS SECTION SHALL BE PROVIDED AT NO COST TO THE CURRENT OR FORMER EMPLOYEE. 4. THE EMPLOYER SHALL PROVIDE SUCH REQUESTED RECORDS PURSUANT TO THIS SECTION AS SOON AS PRACTICABLE, PROVIDED THAT REQUESTED WRITTEN DESCRIPTIONS OF THE QUOTA SHALL BE PROVIDED NO LATER THAN TWO BUSINESS DAYS FOLLOWING THE DATE OF THE RECEIPT OF THE REQUEST AND REQUESTED PERSONAL WORK SPEED DATA AND AGGREGATED WORK SPEED DATA SHALL BE PROVIDED NO LATER THAN SEVEN BUSINESS DAYS FOLLOWING THE DATE OF THE RECEIPT OF THE REQUEST. 5. NOTHING IN THIS SECTION SHALL REQUIRE AN EMPLOYER TO USE QUOTAS AS DEFINED IN THIS ARTICLE OR MONITOR WORK SPEED DATA. AN EMPLOYER THAT DOES NOT MONITOR THIS DATA HAS NO OBLIGATION TO PROVIDE IT. § 786. UNLAWFUL RETALIATION. 1. NO PERSON, INCLUDING BUT NOT LIMITED TO AN EMPLOYER, HIS OR HER AGENT, OR PERSON ACTING AS OR ON BEHALF OF A HIRING ENTITY, OR THE OFFICER OR AGENT OF ANY ENTITY, BUSINESS, CORPO- RATION, PARTNERSHIP, OR LIMITED LIABILITY COMPANY, SHALL DISCHARGE OR IN ANY WAY RETALIATE, DISCRIMINATE OR TAKE ADVERSE ACTION AGAINST ANY S. 8922--A 5 PERSON FOR EXERCISING ANY RIGHTS CONFERRED UNDER THIS ARTICLE, OR FOR BEING PERCEIVED AS EXERCISING RIGHTS CONFERRED BY THIS ARTICLE, INCLUD- ING BUT NOT LIMITED TO: (A) INITIATING A REQUEST FOR INFORMATION ABOUT A QUOTA OR PERSONAL WORK SPEED DATA PURSUANT TO SUBDIVISION ONE OF SECTION SEVEN HUNDRED EIGHTY-FIVE OF THIS ARTICLE. (B) MAKING A COMPLAINT RELATED TO A QUOTA ALLEGING ANY VIOLATION OF SECTION SEVEN HUNDRED EIGHTY-ONE, SEVEN HUNDRED EIGHTY-TWO, SEVEN HUNDRED EIGHTY-THREE, OR SEVEN HUNDRED EIGHTY-FIVE OF THIS ARTICLE TO THE COMMISSIONER, ANY OTHER LOCAL, STATE, OR FEDERAL GOVERNMENTAL AGENCY OR OFFICIAL, OR THE EMPLOYER. 2. AN EMPLOYEE NEED NOT EXPLICITLY REFER TO THIS ARTICLE OR THE RIGHTS ENUMERATED HEREIN TO BE PROTECTED FROM AN ADVERSE ACTION. PROTECTIONS OF THIS SECTION SHALL APPLY TO FORMER EMPLOYEES AND TO EMPLOYEES WHO MISTAKENLY BUT IN GOOD FAITH ALLEGE VIOLATIONS OF THIS ARTICLE. 3. IF A PERSON TAKES ADVERSE ACTION AGAINST AN EMPLOYEE WITHIN NINETY DAYS OF THE EMPLOYEE'S ENGAGING OR ATTEMPTING TO ENGAGE IN ACTIVITIES PROTECTED BY THIS ARTICLE, SUCH CONDUCT SHALL RAISE A REBUTTABLE PRESUMPTION THAT THE ACTION IS AN ADVERSE ACTION IN VIOLATION OF THIS ARTICLE. SUCH PRESUMPTION MAY BE REBUTTED BY CLEAR AND CONVINCING EVIDENCE THAT: (A) THE ACTION WAS TAKEN FOR OTHER PERMISSIBLE REASONS; AND (B) THE ENGAGING OR ATTEMPTING TO ENGAGE IN ACTIVITIES PROTECTED BY THIS ARTICLE WAS NOT A MOTIVATING FACTOR IN THE ADVERSE ACTION. § 787. ENFORCEMENT. THE COMMISSIONER SHALL ADOPT RULES AND REGU- LATIONS IMPLEMENTING THE PROVISIONS OF THIS ARTICLE. THE COMMISSIONER SHALL BE AUTHORIZED TO ENFORCE THE PROVISIONS OF THIS ARTICLE AND TO ASSESS CIVIL PENALTIES IN A MANNER CONSISTENT WITH SECTIONS TWO HUNDRED THIRTEEN, TWO HUNDRED FIFTEEN AND TWO HUNDRED EIGHTEEN OF THIS CHAPTER. § 788. OTHER POWERS. THE ATTORNEY GENERAL, EITHER UPON HIS OR HER OWN COMPLAINT OR THE COMPLAINT OF ANY PERSON ACTING FOR THEMSELVES OR THE GENERAL PUBLIC, HAS THE AUTHORITY TO PROSECUTE ACTIONS, EITHER CIVIL OR CRIMINAL, FOR VIOLATIONS OF THIS ARTICLE, OR TO ENFORCE THE PROVISIONS THEREOF INDEPENDENTLY AND WITHOUT SPECIFIC DIRECTION OF THE COMMISSION- ER. § 4. Severability. If any provision of this act, or any application of any provision of this act, is held to be invalid, that shall not affect the validity or effectiveness of any other provision of this act, or of any other application of any provision of this act, which can be given effect without that provision or application; and to that end, the provisions and applications of this act are severable. § 5. This act shall take effect on the sixtieth day after it shall have become a law.
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