New York State's Warehouse Worker Protection Act (“WWPA”), which was originally signed into law on December 21, 2022, and subsequently amended on March 3, 2023, institutes new requirements governing the use of any quotas to which nonexempt workers at warehouse distribution centers may be subject. The amended version of the WWPA takes effect on June 19, 2023.
Applicability and Definitions
In its amended form, the WWPA applies to employers with 100 or more employees at a single warehouse distribution center, or 1,000 or more employees at one or more warehouse distribution centers, in New York State. Notably, the WWPA defines the term “employer” broadly to include any person who directly or indirectly employs or exercises control over the wages, hours, or working conditions of such employees. Workers employed through third-party employers, temporary services, and staffing agencies, as well as independent contractors, count toward this threshold. Additionally, all employees of a controlled group of corporations are to be counted in determining the number of employees. Exempt employees and employees who work as drivers or couriers to or from warehouse distribution centers, however, are not covered.
“Warehouse distribution centers” are defined to include the following North American industry classification systems (“NAICS”) codes:
- 493: Warehousing and storage (excluding farm product warehousing and storage)
- 423: Merchant wholesalers, durable goods
- 424: Merchant wholesalers, nondurable goods
- 454110: Electronic shopping and mail-order houses
- 492110: Couriers and express delivery services
For the purposes of the law, a “quota” includes any work standard which an employee is assigned or required to perform, including a specified productivity speed, number of tasks to be performed, or amount of material to be handled or produced within a defined time period, or under which the employee may suffer an adverse employment action if they fail to complete the performance standard. The phrase “employee work speed data” is used to refer to information that an employer collects, stores, analyzes, or interprets relating to an individual employee's performance of a quota.
Employer Requirements
The WWPA requires covered employers, upon hire or within 30 days of the effective date of the law, to provide each employee with a written description of each quota to which the employee is subject and any adverse employment action that could result from failure to meet the quota. In the event a quota is changed, an employer is required to provide an updated written description within two business days of such change. Additionally, an employer is required to provide the applicable quota description to the employee each time an adverse action is taken against an employee. The description must be provided in English, as well as a language identified by employees as their primary language.
An employer is prohibited from taking adverse employment action against an employee for failure to meet a quota that has not been disclosed. An employer is also prohibited from requiring an employee to meet a quota that interferes with required meal or rest periods or use of bathroom facilities.
Current employees have the right to request a written description of each quota to which they are subject. The WWPA also provides the right for current or former employees who believe that they have been disciplined as a result of failing to meet a quota, or that meeting a quota has caused a violation of their right to a meal or rest period or use of bathroom facilities, to request a written description of each quota to which the employee is subject, a copy of the most recent ninety days of the employee's work speed data, and a copy of the aggregated work speed data for similar employees at the same establishment for the same period. “Aggregated work speed data” is defined to mean a compilation of employee work speed data for multiple employees in a form in which the data cannot be identified with any individual. A former employee is limited to one such request under this law. Employers are required to respond within fourteen calendar days.
Covered employers are required to establish, maintain and preserve specified records demonstrating compliance with the WWPA for three years.
Legal Implications
The WWPA creates a rebuttable presumption of unlawful retaliation if an employer takes adverse action against any employee within 90 days of (i) the employee's first request for information about a quota or personal work speed data in a given calendar year or (ii) any complaint alleging a violation of the WWPA to the Commissioner of Labor, the Department of Labor, local or state governmental agency, or the employer. This statute allows the Commissioner to assess civil penalties in addition to and concurrently with any other remedy, and provides the Attorney General with the authority to enforce and prosecute civil or criminal actions for violations of this law.
Action Items
Employers with warehouse distribution centers classified under the relevant NCAIS codes should first determine whether they meet either threshold for the number of employees to trigger the WWPA. If so, employers should prepare a written description for each quota to which its nonexempt employees are subject. The description should be in English, as well as any other applicable languages, and employers should be prepared to distribute them to all employees subject to such quotas by July 19, 2023 (and sooner if possible). At a minimum, these descriptions, as well as employee work speed data and aggregated work speed data, should be maintained for three years in order to comply with the WWPA's recordkeeping requirements.
Employers should also consider evaluating such quotas to ensure that they can be accomplished without interfering with an employee's meal or rest periods, or use of bathroom facilities. Finally, employers may want to consult an attorney prior to taking any adverse employment action within 90 days of an employee's request for quota information or complaint alleging a violation of the WWPA.
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