| 1 | 1 | | |
|---|
| 2 | 2 | | |
|---|
| 3 | 3 | | |
|---|
| 4 | 4 | | |
|---|
| 5 | 5 | | 2023 -- S 0661 |
|---|
| 6 | 6 | | ======== |
|---|
| 7 | 7 | | LC002440 |
|---|
| 8 | 8 | | ======== |
|---|
| 9 | 9 | | S TATE OF RHODE IS LAND |
|---|
| 10 | 10 | | IN GENERAL ASSEMBLY |
|---|
| 11 | 11 | | JANUARY SESSION, A.D. 2023 |
|---|
| 12 | 12 | | ____________ |
|---|
| 13 | 13 | | |
|---|
| 14 | 14 | | A N A C T |
|---|
| 15 | 15 | | RELATING TO LABOR AND LABOR RELATIONS -- WAREHOUSE WORKER |
|---|
| 16 | 16 | | PROTECTION ACT |
|---|
| 17 | 17 | | Introduced By: Senators Ciccone, F. Lombardi, Britto, DiPalma, Tikoian, Burke, and Bell |
|---|
| 18 | 18 | | Date Introduced: March 07, 2023 |
|---|
| 19 | 19 | | Referred To: Senate Labor |
|---|
| 20 | 20 | | |
|---|
| 21 | 21 | | |
|---|
| 22 | 22 | | It is enacted by the General Assembly as follows: |
|---|
| 23 | 23 | | SECTION 1. Title 28 of the General Laws entitled "LABOR AND LABOR RELATIONS" 1 |
|---|
| 24 | 24 | | is hereby amended by adding thereto the following chapter: 2 |
|---|
| 25 | 25 | | CHAPTER 60 3 |
|---|
| 26 | 26 | | WAREHOUSE WORKER PROTECTION ACT 4 |
|---|
| 27 | 27 | | 28-60-1. Short title. 5 |
|---|
| 28 | 28 | | This chapter shall be known and may be cited as the "Warehouse Worker Protection Act". 6 |
|---|
| 29 | 29 | | 28-60-2. Definitions. 7 |
|---|
| 30 | 30 | | As used in this chapter: 8 |
|---|
| 31 | 31 | | (1) "Aggregated data" means information that an employer has combined or collected 9 |
|---|
| 32 | 32 | | together in summary or other form such that the data cannot be identified with any individual. 10 |
|---|
| 33 | 33 | | (2) "Defined time period" means any unit of time measurement equal to or less than the 11 |
|---|
| 34 | 34 | | duration of an employee’s shift, and includes hours, minutes, and seconds and any fraction thereof. 12 |
|---|
| 35 | 35 | | (3) "Designated employee representative" means any employee representative, including, 13 |
|---|
| 36 | 36 | | but not limited to, an authorized employee representative that has a collective bargaining 14 |
|---|
| 37 | 37 | | relationship with the employer. 15 |
|---|
| 38 | 38 | | (4) "Employee" means a nonexempt employee who works at a warehouse distribution 16 |
|---|
| 39 | 39 | | center and is subject to a quota as defined in this section. 17 |
|---|
| 40 | 40 | | (5) "Employee work speed data" means information an employer collects, stores, analyzes, 18 |
|---|
| 41 | 41 | | |
|---|
| 42 | 42 | | |
|---|
| 43 | 43 | | LC002440 - Page 2 of 7 |
|---|
| 44 | 44 | | or interprets relating to an individual employee’s performance of a quota, including, but not limited 1 |
|---|
| 45 | 45 | | to, quantities of tasks performed, quantities of items or materials handled or produced, rates or 2 |
|---|
| 46 | 46 | | speeds of tasks performed, measurements or metrics of employee performance in relation to a 3 |
|---|
| 47 | 47 | | quota, and time categorized as performing tasks or not performing tasks. 4 |
|---|
| 48 | 48 | | (6)(i) "Employer" means a person who directly or indirectly, or through an agent or any 5 |
|---|
| 49 | 49 | | other person, including through the services of a third-party employer, temporary services, or 6 |
|---|
| 50 | 50 | | staffing agency, independent contractor, or any similar entity, at any time in the prior twelve (12) 7 |
|---|
| 51 | 51 | | months, employs or exercises control over the wages, hours, or working conditions of one hundred 8 |
|---|
| 52 | 52 | | (100) or more employees at a single warehouse distribution center or five hundred (500) or more 9 |
|---|
| 53 | 53 | | employees at one or more warehouse distribution centers in the state. 10 |
|---|
| 54 | 54 | | (ii) For the purposes of this subsection: 11 |
|---|
| 55 | 55 | | (A) All employees employed directly or indirectly, or through an agent or any other person, 12 |
|---|
| 56 | 56 | | as described in subsection (6)(i) of this section, as well as any employee employed by a member of 13 |
|---|
| 57 | 57 | | a controlled group of corporations of which the employer is a member, shall be counted in 14 |
|---|
| 58 | 58 | | determining the number of employees employed at a single warehouse distribution center or at one 15 |
|---|
| 59 | 59 | | or more warehouse distribution centers in the state; and 16 |
|---|
| 60 | 60 | | (B) All agents or other persons, as described in subsection (6)(i) of this section, and all 17 |
|---|
| 61 | 61 | | members of a controlled group of corporations of which the employer is a member, shall be deemed 18 |
|---|
| 62 | 62 | | to be employers and shall be jointly and severally responsible for compliance with this chapter. For 19 |
|---|
| 63 | 63 | | purposes of this subsection, the term "controlled group of corporations" shall be defined as provided 20 |
|---|
| 64 | 64 | | under Section 1563 of the Internal Revenue Code, 26 U.S.C. section 1563, except that fifty percent 21 |
|---|
| 65 | 65 | | (50%) shall be substituted for eighty percent (80%) where eighty percent (80%) is specified in that 22 |
|---|
| 66 | 66 | | definition. 23 |
|---|
| 67 | 67 | | (7) "Person" means an individual, corporation, partnership, limited partnership, limited 24 |
|---|
| 68 | 68 | | liability partnership, limited liability company, business trust, estate, trust, association, joint 25 |
|---|
| 69 | 69 | | venture, agency, instrumentality, or any other legal or commercial entity, whether domestic or 26 |
|---|
| 70 | 70 | | foreign. 27 |
|---|
| 71 | 71 | | (8) "Quota" means a work standard which: 28 |
|---|
| 72 | 72 | | (i) An employee is assigned or required to perform: 29 |
|---|
| 73 | 73 | | (A) At a specified productivity speed; or a quantified number of tasks, or to handle or 30 |
|---|
| 74 | 74 | | produce a quantified amount of material, within a defined time period; or 31 |
|---|
| 75 | 75 | | (B) An employee's actions are categorized between time performing tasks and not 32 |
|---|
| 76 | 76 | | performing tasks, and the employee's failure to complete a task performance standard or 33 |
|---|
| 77 | 77 | | recommendation may have an adverse impact on the employee's continued employment or the 34 |
|---|
| 78 | 78 | | |
|---|
| 79 | 79 | | |
|---|
| 80 | 80 | | LC002440 - Page 3 of 7 |
|---|
| 81 | 81 | | conditions of such employment. 1 |
|---|
| 82 | 82 | | (9) "Warehouse distribution center" means an establishment as defined by any of the 2 |
|---|
| 83 | 83 | | following North American industry classification system ("NAICS") codes, however such 3 |
|---|
| 84 | 84 | | establishment is denominated: 4 |
|---|
| 85 | 85 | | (i) Four hundred ninety-three (493) for warehousing and storage; 5 |
|---|
| 86 | 86 | | (ii) Four hundred twenty-three (423) for merchant wholesalers, durable goods; 6 |
|---|
| 87 | 87 | | (iii) Four hundred twenty-four (424) for merchant wholesalers, nondurable goods; 7 |
|---|
| 88 | 88 | | (iv) Four hundred fifty-four thousand one hundred ten (454,110) for electronic shopping 8 |
|---|
| 89 | 89 | | and mail-order houses; or 9 |
|---|
| 90 | 90 | | (v) Four hundred ninety-two thousand one hundred ten (492,110) for couriers and express 10 |
|---|
| 91 | 91 | | delivery services. 11 |
|---|
| 92 | 92 | | 28-60-3. Disclosure of quotas. 12 |
|---|
| 93 | 93 | | (a) Each employer shall provide to each employee, upon hire, or within thirty (30) days of 13 |
|---|
| 94 | 94 | | the effective date of this chapter, a written description of each quota to which the employee is 14 |
|---|
| 95 | 95 | | subject, including the quantified number of tasks to be performed or materials to be produced or 15 |
|---|
| 96 | 96 | | handled, within the defined time period, and any potential adverse employment action that could 16 |
|---|
| 97 | 97 | | result from failure to meet the quota. 17 |
|---|
| 98 | 98 | | (b) Each time the quota changes thereafter, the employer shall provide an updated written 18 |
|---|
| 99 | 99 | | description of each quota to which the employee is subject within two (2) business days of such 19 |
|---|
| 100 | 100 | | quota change. 20 |
|---|
| 101 | 101 | | (c) Each time an employer takes an adverse employment action against an employee, the 21 |
|---|
| 102 | 102 | | employer shall provide that employee with the applicable quota for the employee. 22 |
|---|
| 103 | 103 | | 28-60-4. Protection from quotas. 23 |
|---|
| 104 | 104 | | (a) An employee shall not be required to meet a quota that prevents compliance with meal 24 |
|---|
| 105 | 105 | | or rest periods or use of bathroom facilities, including reasonable travel time to and from bathroom 25 |
|---|
| 106 | 106 | | facilities. An employer shall not take adverse employment action against an employee for failure 26 |
|---|
| 107 | 107 | | to meet a quota that does not allow a worker to comply with meal and rest periods or for failure to 27 |
|---|
| 108 | 108 | | meet a quota that has not been disclosed to the employee pursuant to § 28-60-3. 28 |
|---|
| 109 | 109 | | (b) Consistent with existing law, paid and unpaid breaks shall not be considered productive 29 |
|---|
| 110 | 110 | | time for the purpose of any quota or monitoring system unless the employee is required to remain 30 |
|---|
| 111 | 111 | | on call. 31 |
|---|
| 112 | 112 | | 28-60-5. Recordkeeping. 32 |
|---|
| 113 | 113 | | (a) Each employer shall establish, maintain, and preserve contemporaneous, true, and 33 |
|---|
| 114 | 114 | | accurate records of the following: 34 |
|---|
| 115 | 115 | | |
|---|
| 116 | 116 | | |
|---|
| 117 | 117 | | LC002440 - Page 4 of 7 |
|---|
| 118 | 118 | | (1) Each employee's own personal work speed data; 1 |
|---|
| 119 | 119 | | (2) The aggregated work speed data for similar employees at the same establishment; and 2 |
|---|
| 120 | 120 | | (3) The written descriptions of the quota such employee was provided pursuant to § 28-60-3 |
|---|
| 121 | 121 | | 3. 4 |
|---|
| 122 | 122 | | (b) Such records shall be maintained and preserved throughout the duration of each 5 |
|---|
| 123 | 123 | | employee's period of employment and made available to the director of the department of labor and 6 |
|---|
| 124 | 124 | | training upon request. 7 |
|---|
| 125 | 125 | | (c) Subsequent to any employee's separation from the employer, such records relating to 8 |
|---|
| 126 | 126 | | the six (6) month period prior to the date of the employee's separation from the employer shall be 9 |
|---|
| 127 | 127 | | preserved for a period of time not less than three (3) years subsequent to the date of such employee's 10 |
|---|
| 128 | 128 | | separation and made available to the director upon request. 11 |
|---|
| 129 | 129 | | (d) Nothing in this section shall require an employer to keep such records if such employer 12 |
|---|
| 130 | 130 | | does not use quotas as defined in this chapter or monitor work speed data. 13 |
|---|
| 131 | 131 | | 28-60-6. Right to request. 14 |
|---|
| 132 | 132 | | (a) A current employee has the right to request a written description of each quota to which 15 |
|---|
| 133 | 133 | | the employee is subject, a copy of the employee's own personal work speed data, and a copy of the 16 |
|---|
| 134 | 134 | | prior six (6) months of aggregated work speed data for similar employees at the same establishment. 17 |
|---|
| 135 | 135 | | (b) A former employee has the right to request, within three (3) years subsequent to the 18 |
|---|
| 136 | 136 | | date of their separation from the employer, a written description of the quota to which they were 19 |
|---|
| 137 | 137 | | subject as of the date of their separation, a copy of the employee's own personal work speed data 20 |
|---|
| 138 | 138 | | for the six (6) months prior to their date of separation, and a copy of aggregated work speed data 21 |
|---|
| 139 | 139 | | for similar employees at the same establishment for the six (6) months prior to their date of 22 |
|---|
| 140 | 140 | | separation. 23 |
|---|
| 141 | 141 | | (c) Such requested records pursuant to this section shall be provided at no cost to the current 24 |
|---|
| 142 | 142 | | or former employee. 25 |
|---|
| 143 | 143 | | (d) The employer shall provide such requested records pursuant to this section as soon as 26 |
|---|
| 144 | 144 | | practicable; provided that, requested written descriptions of the quota shall be provided no later 27 |
|---|
| 145 | 145 | | than two (2) business days following the date of the receipt of the request and requested personal 28 |
|---|
| 146 | 146 | | work speed data and aggregated work speed data shall be provided no later than seven (7) business 29 |
|---|
| 147 | 147 | | days following the date of the receipt of the request. 30 |
|---|
| 148 | 148 | | (e) Nothing in this section shall require an employer to use quotas as defined in this chapter 31 |
|---|
| 149 | 149 | | or monitor work speed data. An employer that does not monitor this data has no obligation to 32 |
|---|
| 150 | 150 | | provide it. 33 |
|---|
| 151 | 151 | | 28-60-7. Unlawful retaliation. 34 |
|---|
| 152 | 152 | | |
|---|
| 153 | 153 | | |
|---|
| 154 | 154 | | LC002440 - Page 5 of 7 |
|---|
| 155 | 155 | | (a) No person, including, but not limited to, an employer, their agent, or person acting as 1 |
|---|
| 156 | 156 | | or on behalf of a hiring entity, or the officer or agent of any entity, business, corporation, 2 |
|---|
| 157 | 157 | | partnership, or limited liability company, shall discharge or in any way retaliate, discriminate or 3 |
|---|
| 158 | 158 | | take adverse action against any person for exercising any rights conferred under this chapter, or for 4 |
|---|
| 159 | 159 | | being perceived as exercising rights conferred by this chapter, including, but not limited to: 5 |
|---|
| 160 | 160 | | (1) Initiating a request for information about a quota or personal work speed data pursuant 6 |
|---|
| 161 | 161 | | to § 28-60-6. 7 |
|---|
| 162 | 162 | | (2) Making a complaint related to a quota alleging any violation of §§ 28-60-3, 28-60-4 8 |
|---|
| 163 | 163 | | and 28-60-6 to the director, any other local, state, or federal governmental agency or official, or the 9 |
|---|
| 164 | 164 | | employer. 10 |
|---|
| 165 | 165 | | (b) An employee need not explicitly refer to this chapter or the rights enumerated in this 11 |
|---|
| 166 | 166 | | chapter to be protected from an adverse action. Protections of this section shall apply to former 12 |
|---|
| 167 | 167 | | employees and to employees who mistakenly, but in good faith, allege violations of this chapter. 13 |
|---|
| 168 | 168 | | (c) If a person takes adverse action against an employee within ninety (90) days of the 14 |
|---|
| 169 | 169 | | employee's engaging or attempting to engage in activities protected by this chapter, such conduct 15 |
|---|
| 170 | 170 | | shall raise a rebuttable presumption that the action is an adverse action in violation of this chapter. 16 |
|---|
| 171 | 171 | | Such presumption may be rebutted by clear and convincing evidence that: 17 |
|---|
| 172 | 172 | | (1) The action was taken for other permissible reasons; and 18 |
|---|
| 173 | 173 | | (2) The engaging or attempting to engage in activities protected by this chapter was not a 19 |
|---|
| 174 | 174 | | motivating factor in the adverse action. 20 |
|---|
| 175 | 175 | | 28-60-8. Requirements for basing discipline on quota compliance. 21 |
|---|
| 176 | 176 | | If the employer wishes to discipline an employee for work under quota, the employer shall 22 |
|---|
| 177 | 177 | | provide a written explanation to the employee regarding the manner in which the employee failed 23 |
|---|
| 178 | 178 | | to perform, including the applicable quota and comparison of work performance to that standard. 24 |
|---|
| 179 | 179 | | 28-60-9. Posting of notices in the workplace related to quotas. 25 |
|---|
| 180 | 180 | | Employers subject to this chapter shall post a notice in the workplace regarding workers' 26 |
|---|
| 181 | 181 | | rights under the chapter, including what constitutes a permissible quota, as well as the employees' 27 |
|---|
| 182 | 182 | | right to request quota and speed date information, and to make a complaint to various state 28 |
|---|
| 183 | 183 | | authorities regarding violation of an employee's quota rights. 29 |
|---|
| 184 | 184 | | 28-60-10. Enforcement. 30 |
|---|
| 185 | 185 | | The director of the department of labor and training shall adopt rules and regulations 31 |
|---|
| 186 | 186 | | implementing the provisions of this chapter. The director shall be authorized to enforce the 32 |
|---|
| 187 | 187 | | provisions of this chapter and to assess civil penalties in a manner consistent with state law. 33 |
|---|
| 188 | 188 | | 28-60-11. Workplace inspections. 34 |
|---|
| 189 | 189 | | |
|---|
| 190 | 190 | | |
|---|
| 191 | 191 | | LC002440 - Page 6 of 7 |
|---|
| 192 | 192 | | If a particular worksite or employer is found to have an annual employee injury rate of at 1 |
|---|
| 193 | 193 | | least one and one-half (1½) times as high as the warehousing industry's average annual injury rate 2 |
|---|
| 194 | 194 | | as published by the Bureau of Labor Statistics' most recent Fatal and Non-fatal Occupational 3 |
|---|
| 195 | 195 | | Injuries and Illnesses data, the director shall conduct an investigation of violations pursuant to this 4 |
|---|
| 196 | 196 | | chapter. 5 |
|---|
| 197 | 197 | | 28-60-12. Private right of action. 6 |
|---|
| 198 | 198 | | (a) A current or former employee or their representative may bring an action for injunctive 7 |
|---|
| 199 | 199 | | relief to obtain compliance with this chapter and may, upon prevailing in the action, recover costs 8 |
|---|
| 200 | 200 | | and reasonable attorneys' fees in such action. 9 |
|---|
| 201 | 201 | | (b) In any action involving a quota that prevented the compliance with applicable 10 |
|---|
| 202 | 202 | | regulations on workplace safety and health or meal or rest break requirements, the injunctive relief 11 |
|---|
| 203 | 203 | | shall be limited to suspension of the quota and restitution and injunctive relief to address any 12 |
|---|
| 204 | 204 | | retaliation or other adverse action taken by the employer in relation to the complaint or its 13 |
|---|
| 205 | 205 | | enforcement. 14 |
|---|
| 206 | 206 | | (c) In any action involving a retaliation in violation of this chapter, in addition to the relief 15 |
|---|
| 207 | 207 | | authorized in this section, a prevailing current or former employee or their representative shall be 16 |
|---|
| 208 | 208 | | awarded damages equal to the greater of ten thousand dollars ($10,000) or three (3) times the actual 17 |
|---|
| 209 | 209 | | damages, including, but not limited to, unpaid wages and benefits. 18 |
|---|
| 210 | 210 | | 28-60-13. Enforcement by attorney general. 19 |
|---|
| 211 | 211 | | The attorney general, either upon their own complaint or the complaint of any person acting 20 |
|---|
| 212 | 212 | | for themselves or the general public, has the authority to prosecute actions, either civil or criminal, 21 |
|---|
| 213 | 213 | | for violations of this chapter, or to enforce the provisions of this chapter, independently and without 22 |
|---|
| 214 | 214 | | specific direction of the director. 23 |
|---|
| 215 | 215 | | 28-60-14. Severability. 24 |
|---|
| 216 | 216 | | If any provision of this chapter, or any application of any provision of this chapter, is held 25 |
|---|
| 217 | 217 | | to be invalid, that shall not affect the validity or effectiveness of any other provision of this chapter, 26 |
|---|
| 218 | 218 | | or of any other application of any provision of this chapter, which can be given effect without that 27 |
|---|
| 219 | 219 | | provision or application; and to that end, the provisions and applications of this chapter are 28 |
|---|
| 220 | 220 | | severable. 29 |
|---|
| 221 | 221 | | SECTION 2. This act shall take effect on September 1, 2023. 30 |
|---|
| 222 | 222 | | ======== |
|---|
| 223 | 223 | | LC002440 |
|---|
| 224 | 224 | | ======== |
|---|
| 225 | 225 | | |
|---|
| 226 | 226 | | |
|---|
| 227 | 227 | | LC002440 - Page 7 of 7 |
|---|
| 228 | 228 | | EXPLANATION |
|---|
| 229 | 229 | | BY THE LEGISLATIVE COUNCIL |
|---|
| 230 | 230 | | OF |
|---|
| 231 | 231 | | A N A C T |
|---|
| 232 | 232 | | RELATING TO LABOR AND LABOR RELATIONS -- WAREHOUSE WORKER |
|---|
| 233 | 233 | | PROTECTION ACT |
|---|
| 234 | 234 | | *** |
|---|
| 235 | 235 | | This act would require employers to provide each employee, defined as a nonexempt 1 |
|---|
| 236 | 236 | | employee who works at a warehouse distribution center, upon hire or within thirty (30) days of the 2 |
|---|
| 237 | 237 | | effective date of this chapter, with a written description of each quota to which the employee is 3 |
|---|
| 238 | 238 | | subject, including the quantified number of tasks to be performed or materials to be produced or 4 |
|---|
| 239 | 239 | | handled, within the defined time period and any potential adverse employment action that could 5 |
|---|
| 240 | 240 | | result from failure to meet the quota. This act also would provide each employee with protections 6 |
|---|
| 241 | 241 | | against quotas and remedies for violations of those protections, including, but not limited to, 7 |
|---|
| 242 | 242 | | unlawful retaliation or dismissal. 8 |
|---|
| 243 | 243 | | This act would take effect on September 1, 2023. 9 |
|---|
| 244 | 244 | | ======== |
|---|
| 245 | 245 | | LC002440 |
|---|
| 246 | 246 | | ======== |
|---|
| 247 | 247 | | |
|---|