Massachusetts 2023-2024 Regular Session

Massachusetts House Bill H1878 Compare Versions

Only one version of the bill is available at this time.

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1	1	1 of 1
2	2	HOUSE DOCKET, NO. 3709 FILED ON: 1/20/2023
3	3	HOUSE . . . . . . . . . . . . . . . No. 1878
4	4	The Commonwealth of Massachusetts
5	5	_________________
6	6	PRESENTED BY:
7	7	Sean Garballey and Simon Cataldo
8	8	_________________
9	9	To the Honorable Senate and House of Representatives of the Commonwealth of Massachusetts in General
10	10	Court assembled:
11	11	The undersigned legislators and/or citizens respectfully petition for the adoption of the accompanying bill:
12	12	An Act protecting warehouse workers.
13	13	_______________
14	14	PETITION OF:
15	15	NAME:DISTRICT/ADDRESS :DATE ADDED:Sean Garballey23rd Middlesex1/20/2023Simon Cataldo14th Middlesex1/20/2023Jessica Ann Giannino16th Suffolk1/27/2023Patrick M. O'ConnorFirst Plymouth and Norfolk2/2/2023James B. EldridgeMiddlesex and Worcester2/10/2023 1 of 8
16	16	HOUSE DOCKET, NO. 3709 FILED ON: 1/20/2023
17	17	HOUSE . . . . . . . . . . . . . . . No. 1878
18	18	By Representatives Garballey of Arlington and Cataldo of Concord, a petition (accompanied by
19	19	bill, House, No. 1878) of Sean Garballey, Simon Cataldo and others relative to warehouse
20	20	workers. Labor and Workforce Development.
21	21	The Commonwealth of Massachusetts
22	22	_______________
23	23	In the One Hundred and Ninety-Third General Court
24	24	(2023-2024)
25	25	_______________
26	26	An Act protecting warehouse workers.
27	27	Be it enacted by the Senate and House of Representatives in General Court assembled, and by the authority
28	28	of the same, as follows:
29	29	1 SECTION 1: Section 1 of Chapter 149 of the Massachusetts General Laws, as appearing
30	30	2in the 2020 official edition, is hereby amended by adding the following definitions:
31	31	3 "Defined time period" means any unit of time measurement equal to or less than the
32	32	4duration of an employee's shift, and includes hours, minutes, and seconds and any fraction
33	33	5thereof.
34	34	6 "Designated employee representative" means any employee representative, including but
35	35	7not limited to an authorized employee representative that has a collective bargaining relationship
36	36	8with the employer.
37	37	9 "Employee" means a nonexempt and non-administrative employee who works at a
38	38	10warehouse distribution center and is subject to a quota as defined in this section. 2 of 8
39	39	11 (a) "Employee work speed data" means information an employer collects, stores,
40	40	12analyzes, or interprets relating to an individual employee's performance of a quota, including, but
41	41	13not limited to, quantities of tasks performed, quantities of items or materials handled or
42	42	14produced, rates or speeds of tasks performed, measurements or metrics of employee performance
43	43	15in relation to a quota, and time categorized as performing tasks or not performing tasks.
44	44	16 (b) "Aggregated data" means information that an employer has combined or collected
45	45	17together in summary or other form such that the data cannot be identified with any individual.
46	46	18 "Employer" means a person who directly or indirectly, or through an agent or any other
47	47	19person, including through the services of a third-party employer, temporary services, or staffing
48	48	20agency, independent contractor, or any similar entity, at any time in the prior twelve months,
49	49	21employs or exercises control over the wages, hours, or working conditions of one hundred or
50	50	22more employees at a single warehouse distribution center or five hundred or more employees at
51	51	23one or more warehouse distribution centers in the state.
52	52	24 (a) all employees employed directly or indirectly, or through an agent or any other
53	53	25person, as described in the above definition, as well as any employee employed by a member of
54	54	26a controlled group of corporations of which the employer is a member, shall be counted in
55	55	27determining the number of employees employed at a single warehouse distribution center or at
56	56	28one or more warehouse distribution centers in the state; and
57	57	29 (b) all agents or other persons, as described in the definition above, and all members of a
58	58	30controlled group of corporations of which the employer is a member, shall be deemed to be
59	59	31employers and shall be jointly and severally responsible for compliance with this article. For
60	60	32purposes of this subdivision, the term "controlled group of corporations" shall be defined as 3 of 8
61	61	33provided under Section 1563 of the Internal Revenue Code, 26 U.S.C. section 1563, except that
62	62	34fifty percent shall be substituted for eighty percent where eighty percent is specified in that
63	63	35definition.
64	64	36 "Person" means an individual, corporation, partnership, limited partnership, limited
65	65	37liability partnership, limited liability company, business trust, estate, trust, association, joint
66	66	38venture, agency, instrumentality, or any other legal or commercial entity, whether domestic or
67	67	39foreign.
68	68	40 "Quota" means a work standard which:
69	69	41 (a) an employee is assigned or required to perform:
70	70	42 (i) at a specified productivity speed; or a quantified number of tasks, or to handle or
71	71	43produce a quantified amount of material, within a defined time period; or
72	72	44 (b) an employee's actions are categorized between time performing tasks and not
73	73	45performing tasks, and the employee's failure to complete a task performance standard or
74	74	46recommendation may have an adverse impact on the employee's continued employment or the
75	75	47conditions of such employment.
76	76	48 "Warehouse distribution center" means an establishment as defined by any of the
77	77	49following North American industry classification system ("NAICS") codes, however such
78	78	50establishment is denominated:
79	79	51 (a) four hundred ninety-three for warehousing and storage;
80	80	52 (b) four hundred twenty-three for merchant wholesalers, durable goods; 4 of 8
81	81	53 (c) four hundred twenty-four for merchant wholesalers, nondurable goods;
82	82	54 (d) four hundred fifty-four thousand one hundred ten for electronic shopping and mail-
83	83	55order houses; or
84	84	56 (e) four hundred ninety-two thousand one hundred ten for couriers and express delivery
85	85	57services.
86	86	58 Section 2: Chapter 149 of the Massachusetts General Laws, as appearing in the 2020
87	87	59official edition, is hereby amended by adding the following section:
88	88	60 52C ½ : Quotas
89	89	61 Each employer shall provide to each employee, upon hire, or within thirty days of the
90	90	62effective date of this article, a written description of each quota to which the employee is subject,
91	91	63including the quantified number of tasks to be performed or materials to be produced or handled,
92	92	64within the defined time period, and any potential adverse employment action that could result
93	93	65from failure to meet the quota. Each time the quota changes thereafter, the employer shall
94	94	66provide an updated written description of each quota to which the employee is subject within two
95	95	67business days of such quota change. Each time an employer takes an adverse employment action
96	96	68against an employee, the employer shall provide that employee with the applicable quota for the
97	97	69employee.
98	98	70 An employee shall not be required to meet a quota that prevents compliance with meal or
99	99	71rest periods or use of bathroom facilities, including reasonable travel time to and from bathroom
100	100	72facilities. An employer shall not take adverse employment action against an employee for failure
101	101	73to meet a quota that does not allow a worker to comply with meal and rest periods or for failure 5 of 8
102	102	74to meet a quota that has not been disclosed to the employee pursuant to section seven hundred
103	103	75eighty-one of this article.
104	104	76 Consistent with existing law, paid and unpaid breaks shall not be considered productive
105	105	77time for the purpose of any quota or monitoring system unless the employee is required to
106	106	78remain on call.
107	107	79 1. Each employer shall establish, maintain, and preserve contemporaneous, true, and
108	108	80accurate records of the following:
109	109	81 (a) each employee's own personal work speed data;
110	110	82 (b) the aggregated work speed data for similar employees at the same establishment; and
111	111	83 (c) the written descriptions of the quota such employee was provided pursuant to section
112	112	84seven hundred eighty-one of this article. Such records shall be maintained and preserved
113	113	85throughout the duration of each employee's period of employment and made available to the
114	114	86commissioner upon request.
115	115	87 Subsequent to any employee's separation from the employer, such records relating to the
116	116	88six month period prior to the date of the employee's separation from the employer shall be
117	117	89preserved for a period of time not less than three years subsequent to the date of such employee's
118	118	90separation and made available to the commissioner upon request. Nothing in this section shall
119	119	91require an employer to keep such records if such employer does not use quotas as defined in this
120	120	92article or monitor work speed data.
121	121	93 A current employee has the right to request a written description of each quota to which
122	122	94the employee is subject, a copy of the employee's own personal work speed data, and a copy of 6 of 8
123	123	95the prior six months of aggregated work speed data for similar employees at the same
124	124	96establishment.
125	125	97 A former employee has the right to request, within three years subsequent to the date of
126	126	98his or her separation from the employer, a written description of the quota to which they were
127	127	99subject as of the date of their separation, a copy of the employee's own personal work speed data
128	128	100for the six months prior to their date of separation, and a copy of aggregated work speed data for
129	129	101similar employees at the same establishment for the six months prior to their date of separation.
130	130	102 Such requested records pursuant to this section shall be provided at no cost to the current
131	131	103or former employee.
132	132	104 The employer shall provide such requested records pursuant to this section as soon as
133	133	105practicable, provided that requested written descriptions of the quota shall be provided no later
134	134	106than two business days following the date of the receipt of the request and requested personal
135	135	107work speed data and aggregated work speed data shall be provided no later than seven business
136	136	108days following the date of the receipt of the request.
137	137	109 5. Nothing in this section shall require an employer to use quotas as defined in this article
138	138	110or monitor work speed data. An employer that does not monitor this data has no obligation to
139	139	111provide it.
140	140	112 No person, including but not limited to an employer, his or her agent, or person acting as
141	141	113or on behalf of a hiring entity, or the officer or agent of any entity, business, corporation,
142	142	114partnership, or limited liability company, shall discharge or in any way retaliate, discriminate or
143	143	115take adverse action against any person for exercising any rights conferred under this article, or
144	144	116for being perceived as exercising rights conferred by this article, including but not limited to: 7 of 8
145	145	117 (a) Initiating a request for information about a quota or personal work speed data
146	146	118pursuant to subdivision one of XXX of this article (Right to request section).
147	147	119 (b) Making a complaint related to a quota alleging any violation of this section to the
148	148	120commissioner, any other local, state, or federal governmental agency or official, or the employer.
149	149	121 An employee need not explicitly refer to this article or the rights enumerated herein to be
150	150	122protected from an adverse action. Protections of this section shall apply to former employees and
151	151	123to employees who mistakenly but in good faith allege violations of this article.
152	152	124 If a person takes adverse action against an employee within ninety days of the employee's
153	153	125engaging or attempting to engage in activities protected by this article, such conduct shall raise a
154	154	126rebuttable presumption that the action is an adverse action in violation of this article. Such
155	155	127presumption may be rebutted by clear and convincing evidence that: (a) the action was taken for
156	156	128other permissible reasons; and (b) the engaging or attempting to engage in activities protected by
157	157	129this article was not a motivating factor in the adverse action.
158	158	130 The commissioner shall adopt rules and regulations implementing the provisions of this
159	159	131article. The commissioner shall be authorized to enforce the provisions of this article and to
160	160	132assess civil penalties in a manner consistent with state law.
161	161	133 If a particular worksite or employer is found to have an annual employee injury rate of at
162	162	134least one and one-half times as high as the warehousing industry's average annual injury rate as
163	163	135published by the Bureau of Labor Statistics’ most recent Fatal and Non-fatal Occupational
164	164	136Injuries and Illnesses data, the commissioner shall conduct an investigation of violations
165	165	137pursuant to this section. 8 of 8
166	166	138 A current or former employee or his or her representative may bring an action for
167	167	139injunctive relief to obtain compliance with this article and may, upon prevailing in the action,
168	168	140recover costs and reasonable attorney's fees in such action. In any action involving a quota that
169	169	141prevented the compliance with applicable regulations on workplace safety and health or meal or
170	170	142rest break requirements, the injunctive relief shall be limited to suspension of the quota and
171	171	143restitution and injunctive relief to address any retaliation or other adverse action taken by the
172	172	144employer in relation to the complaint or its enforcement. In any action involving a retaliation in
173	173	145violation this article, in addition to the relief authorized above, a prevailing current or former
174	174	146employee or his or her representative shall be awarded damages equal to the greater of ten
175	175	147thousand dollars or three times the actual damages, including, but not limited to, unpaid wages
176	176	148and benefits.
177	177	149 The attorney general, either upon his or her own complaint or the complaint of any
178	178	150person acting for themselves or the general public, has the authority to prosecute actions, either
179	179	151civil or criminal, for violations of this article, or to enforce the provisions thereof independently
180	180	152and without specific direction of the commissioner.
181	181	153 If any provision of this act, or any application of any provision of this act, is held to be
182	182	154invalid, that shall not affect the validity or effectiveness of any other provision of this act, or of
183	183	155any other application of any provision of this act, which can be given effect without that
184	184	156provision or application; and to that end, the provisions and applications of this act are severable.