STATE OF NEW YORK ________________________________________________________________________ 851 2023-2024 Regular Sessions IN SENATE January 6, 2023 ___________ Introduced by Sen. RAMOS -- read twice and ordered printed, and when printed to be committed to the Committee on Rules AN ACT to amend the labor law, in relation to establishing the warehouse worker protection act; and to amend a chapter of the laws of 2022 amending the labor law relating to establishing the warehouse worker protection act, as proposed in legislative bills numbers S. 8922-A and A. 10020-A, in relation to the effectiveness thereof The People of the State of New York, represented in Senate and Assem- bly, do enact as follows: 1 Section 1. Sections 780, 781, 784, 785, 786 and 787 of the labor law, 2 as added by a chapter of the laws of 2022 amending the labor law relat- 3 ing to establishing the warehouse worker protection act, as proposed in 4 legislative bills numbers S. 8922-A and A. 10020-A, are amended to read 5 as follows: 6 § 780. Definitions. As used in this article: 7 1. "Defined time period" means any unit of time measurement equal to 8 or less than the duration of an employee's shift, and includes hours, 9 minutes, and seconds and any fraction thereof. 10 2. ["Designated employee representative" means any employee represen- 11 tative, including but not limited to an authorized employee represen- 12 tative that has a collective bargaining relationship with the employer. 13 3.] "Employee" means [a nonexempt and non-administrative] an employee 14 who is not exempt from the minimum wage and any overtime compensation 15 provisions of this chapter and any applicable minimum wage orders and 16 who works at a warehouse distribution center and is subject to a quota 17 as defined in this section; provided, however, that "employee" does not 18 include a driver or courier to or from a warehouse distribution center. 19 [4.] 3. (a) "Employee work speed data" means information an employer 20 collects, stores, analyzes, or interprets relating to an individual 21 employee's performance of a quota, including, but not limited to, quan- 22 tities of tasks performed, quantities of items or materials handled or EXPLANATION--Matter in italics (underscored) is new; matter in brackets [ ] is old law to be omitted. LBD04025-01-3
S. 851 2 1 produced, rates or speeds of tasks performed, measurements or metrics of 2 employee performance in relation to a quota, and time categorized as 3 performing tasks or not performing tasks. 4 (b) "Aggregated work speed data" means [information that an employer 5 has combined or collected together] a compilation of employee work speed 6 data for multiple employees, in summary [or other] form, assembled in 7 full or in another form such that the data cannot be identified with any 8 individual. 9 [5.] 4. "Employer" means a person who directly or indirectly, or 10 through an agent or any other person, including through the services of 11 a third-party employer, temporary services, or staffing agency, inde- 12 pendent contractor, or any similar entity, [at any time in the prior 13 twelve months,] employs or exercises control over the wages, hours, or 14 working conditions of one hundred or more employees at a single ware- 15 house distribution center or [five hundred] one thousand or more employ- 16 ees at one or more warehouse distribution centers in the state. 17 For the purposes of this [subdivision: (a) all employees employed 18 directly or indirectly, or through an agent or any other person, as 19 described in the opening paragraph of this subdivision, as well as any 20 employee employed by a member of a controlled group of corporations of 21 which the employer is a member, shall be counted in determining the 22 number of employees employed at a single warehouse distribution center 23 or at one or more warehouse distribution centers in the state; and (b) 24 all agents or other persons, as described in the opening paragraph of 25 this subdivision, and all members of a controlled group of corporations 26 of which the employer is a member, shall be deemed to be employers and 27 shall be jointly and severally responsible for compliance with this 28 article. For purposes of this subdivision, the term "controlled group of 29 corporations" shall be defined as provided under Section 1563 of the 30 Internal Revenue Code, 26 U.S.C. section 1563, except that fifty 31 percent shall be substituted for eighty percent where eighty percent is 32 specified in that] definition, all employees of a controlled group of 33 corporations shall be counted in determining the number of employees 34 employed at a single warehouse distribution center or at one or more 35 warehouse distribution centers in the state. 36 [6.] 5. "Person" means an individual, corporation, partnership, limit- 37 ed partnership, limited liability partnership, limited liability compa- 38 ny, business trust, estate, trust, association, joint venture, agency, 39 instrumentality, or any other legal or commercial entity, whether domes- 40 tic or foreign. 41 [7.] 6. "Quota" means a work standard which: 42 (a) an employee is assigned or required to perform: [(i)] at a speci- 43 fied productivity speed; or a quantified number of tasks, or to handle 44 or produce a quantified amount of material, within a defined time peri- 45 od; or under which the employee may suffer an adverse employment action 46 if they fail to complete the performance standard. 47 (b) an employee's actions are categorized between time performing 48 tasks and not performing tasks, and the employee's failure to complete a 49 task performance standard or recommendation may have an adverse impact 50 on the employee's continued employment or the conditions of such employ- 51 ment. 52 [8.] 7. "Warehouse distribution center" means an establishment as 53 defined by any of the following North American industry classification 54 system ("NAICS") codes, however such establishment is denominated:
S. 851 3 1 (a) four hundred ninety-three for warehousing and storage but does not 2 include four hundred ninety-three thousand one hundred thirty for farm 3 product warehousing and storage; 4 (b) four hundred twenty-three for merchant wholesalers, durable goods; 5 (c) four hundred twenty-four for merchant wholesalers, nondurable 6 goods; 7 (d) four hundred fifty-four thousand one hundred ten for electronic 8 shopping and mail-order houses; or 9 (e) four hundred ninety-two thousand one hundred ten for couriers and 10 express delivery services. 11 § 781. Quotas. Each employer shall provide to each employee, upon 12 hire, or within thirty days of the effective date of this article, a 13 written description of each quota to which the employee is subject, 14 including the quantified number of tasks to be performed or materials to 15 be produced or handled, within the defined time period, and any poten- 16 tial adverse employment action that could result from failure to meet 17 the quota. Each time the quota changes thereafter, the employer shall 18 provide an updated written description of each quota to which the 19 employee is subject within two business days of such quota change. Each 20 time an employer takes an adverse employment action against an employee, 21 the employer shall provide that employee with the applicable quota for 22 the employee. The employer must provide the written description of any 23 quota pursuant to this section in English and in the language identified 24 by each employee as the primary language of such employee. 25 § 784. Recordkeeping. 1. Each employer shall establish, maintain, and 26 preserve for three years contemporaneous, true, and accurate records [of 27 the following: (a) each employee's own personal work speed data; (b) 28 the aggregated work speed data for similar employees at the same estab- 29 lishment; and (c) the written descriptions of the quota such employee 30 was provided pursuant to section seven hundred eighty-one of this arti- 31 cle. Such records shall be maintained and preserved throughout the dura- 32 tion of each employee's period of employment and made available to the 33 commissioner upon request. 34 2. Subsequent to any employee's separation from the employer, such 35 records relating to the six month period prior to the date of the 36 employee's separation from the employer shall be preserved for a period 37 of time not less than three years subsequent to the date of such employ- 38 ee's separation and made available to the commissioner upon request. 39 Nothing in this section shall require an employer to keep such records 40 if such employer does not use quotas as defined in this article or moni- 41 tor work speed data] to ensure compliance with employee or commissioner 42 requests for data. 43 § 785. Right to request. 1. A current employee has the right to 44 request a written description of each quota to which the employee is 45 subject[, a copy of the employee's own personal work speed data, and a 46 copy of the prior six months of aggregated work speed data for similar 47 employees at the same establishment]. If a current or former employee 48 believes that they have been disciplined as the result of failing to 49 meet a quota, or that meeting a quota caused a violation of their right 50 to a meal or rest period or use of bathroom facilities, including 51 reasonable travel time to and from bathroom facilities, they have the 52 right to request, and the employer shall provide, a written description 53 of each quota to which the employee is subject, a copy of the most 54 recent ninety days of the employee's own personal work speed data, and a 55 copy of the aggregate work speed data for similar employees at the same 56 establishment for the same time period.
S. 851 4 1 2. [A former employee has the right to request, within three years 2 subsequent to the date of his or her separation from the employer, a 3 written description of the quota to which they were subject as of the 4 date of their separation, a copy of the employee's own personal work 5 speed data for the six months prior to their date of separation, and a 6 copy of aggregated work speed data for similar employees at the same 7 establishment for the six months prior to their date of separation. 8 3.] Such requested records pursuant to this section shall be provided 9 at no cost to the current or former employee. A former employee is 10 limited to one request pursuant to this section. 11 [4. The employer shall provide such requested records pursuant to this 12 section as soon as practicable, provided that requested written 13 descriptions of the quota shall be provided no later than two business 14 days following the date of the receipt of the request and requested 15 personal work speed data and aggregated work speed data shall be 16 provided no later than seven business days following the date of the 17 receipt of the request. 18 5.] 3. An employer that receives a written or oral request for infor- 19 mation pursuant to this section shall comply with the request as soon as 20 practicable, but no later than fourteen calendar days from the date of 21 the request. 22 4. Nothing in this section shall require an employer to use quotas as 23 defined in this article or monitor work speed data. An employer that 24 does not monitor this data has no obligation to provide it. 25 5. The employer must provide the requested written description of any 26 quota and personal work speed data pursuant to this section in English 27 and in the language identified by each employee as the primary language 28 of such employee. 29 § 786. Unlawful retaliation. [1. No person, including but not limited 30 to an employer, his or her agent, or person acting as or on behalf of a 31 hiring entity, or the officer or agent of any entity, business, corpo- 32 ration, partnership, or limited liability company, shall discharge or in 33 any way retaliate, discriminate or take adverse action against any 34 person for exercising any rights conferred under this article, or for 35 being perceived as exercising rights conferred by this article, includ- 36 ing but not limited to: 37 (a) Initiating a request for information about a quota or personal 38 work speed data pursuant to subdivision one of section seven hundred 39 eighty-five of this article. 40 (b) Making a complaint related to a quota alleging any violation of 41 section seven hundred eighty-one, seven hundred eighty-two, seven 42 hundred eighty-three, or seven hundred eighty-five of this article to 43 the commissioner, any other local, state, or federal governmental agency 44 or official, or the employer. 45 2. An employee need not explicitly refer to this article or the rights 46 enumerated herein to be protected from an adverse action. Protections of 47 this section shall apply to former employees and to employees who 48 mistakenly but in good faith allege violations of this article. 49 3. If a person takes adverse action against an employee within ninety 50 days of the employee's engaging or attempting to engage in activities 51 protected by this article, such conduct shall raise a rebuttable 52 presumption that the action is an adverse action in violation of this 53 article. Such presumption may be rebutted by clear and convincing 54 evidence that: (a) the action was taken for other permissible reasons; 55 and (b) the engaging or attempting to engage in activities protected by 56 this article was not a motivating factor in the adverse action.] For
S. 851 5 1 purposes of this article, there shall be a rebuttable presumption of 2 unlawful retaliation if an employer in any manner discriminates, retali- 3 ates, or takes any adverse action against any employee within ninety 4 days of the employee doing either of the following: 5 1. Initiating the employee's first request in a calendar year for 6 information about a quota or personal work speed data pursuant to subdi- 7 visions one through three of section seven hundred eighty-five of this 8 article. 9 2. Making a complaint related to a quota alleging any violation of 10 sections seven hundred eighty-one to seven hundred eighty-five of this 11 article, inclusive, to the commissioner, the department, other local or 12 state governmental agency, or the employer. 13 § 787. Enforcement. The commissioner [shall] may adopt rules and 14 regulations implementing the provisions of this article. The commis- 15 sioner shall be authorized to enforce the provisions of this article and 16 to assess civil penalties [in a manner consistent with] as provided in 17 sections [two hundred thirteen,] two hundred fifteen and two hundred 18 eighteen of this chapter. The civil penalties provided for in this 19 section shall be in addition to and may be imposed concurrently with any 20 other remedy or penalty provided for in this chapter. 21 § 2. The opening paragraph of subdivision 1 of section 218 of the 22 labor law, as amended by chapter 2 of the laws of 2015, is amended to 23 read as follows: 24 If the commissioner determines that an employer has violated a 25 provision of article six (payment of wages), article nineteen (minimum 26 wage act), article nineteen-A (minimum wage standards and protective 27 labor practices for farm workers), article twenty-one-A (warehouse work- 28 er protection act), section two hundred twelve-a, section two hundred 29 twelve-b, section one hundred sixty-one (day of rest) or section one 30 hundred sixty-two (meal periods) of this chapter, or a rule or regu- 31 lation promulgated thereunder, the commissioner shall issue to the 32 employer an order directing compliance therewith, which shall describe 33 particularly the nature of the alleged violation. A copy of such order 34 shall be provided to any employee who has filed a complaint and any 35 authorized representative of him or her. In addition to directing 36 payment of wages, benefits or wage supplements found to be due, and 37 liquidated damages in the amount of one hundred percent of unpaid wages, 38 such order, if issued to an employer who previously has been found in 39 violation of those provisions, rules or regulations, or to an employer 40 whose violation is willful or egregious, shall direct payment to the 41 commissioner of an additional sum as a civil penalty in an amount not to 42 exceed double the total amount of wages, benefits, or wage supplements 43 found to be due. In no case shall the order direct payment of an amount 44 less than the total wages, benefits or wage supplements found by the 45 commissioner to be due, plus the liquidated damages in the amount of one 46 hundred percent of unpaid wages, the appropriate civil penalty, and 47 interest at the rate of interest then in effect, as prescribed by the 48 superintendent of financial services pursuant to section fourteen-a of 49 the banking law per annum from the date of the underpayment to the date 50 of the payment. Where the violation is for a reason other than the 51 employer's failure to pay wages, benefits or wage supplements found to 52 be due, the order shall direct payment to the commissioner of a civil 53 penalty in an amount not to exceed one thousand dollars for a first 54 violation, two thousand dollars for a second violation or three thousand 55 dollars for a third or subsequent violation. In assessing the amount of 56 the penalty, the commissioner shall give due consideration to the size
S. 851 6 1 of the employer's business, the good faith basis of the employer to 2 believe that its conduct was in compliance with the law, the gravity of 3 the violation, the history of previous violations and, in the case of 4 wages, benefits or supplements violations, the failure to comply with 5 recordkeeping or other non-wage requirements. 6 § 3. Section 5 of a chapter of the laws of 2022 amending the labor law 7 relating to establishing the warehouse worker protection act, as 8 proposed in legislative bills numbers S. 8922-A and A. 10020-A, is 9 amended to read as follows: 10 § 5. This act shall take effect on the [sixtieth] one hundred eight- 11 ieth day after it shall have become a law. Effective immediately, the 12 adoption, amendment and/or repeal of any rule or regulation necessary 13 for the implementation of this act on its effective date are 14 authorized to be made by the commissioner on or before such effective 15 date. 16 § 4. This act shall take effect immediately; provided, however, that 17 sections one and two of this act shall take effect on the same date and 18 in the same manner as a chapter of the laws of 2022 amending the labor 19 law relating to establishing the warehouse worker protection act, as 20 proposed in legislative bills numbers S. 8922-A and A. 10020-A, takes 21 effect.