LawFlash

New York State Delays, Amends Warehouse Worker Protection Act

April 10, 2023

New York Governor Kathy Hochul has signed a law amending and delaying the effective date of the recently enacted Warehouse Worker Protection Act from February 2023 to June 2023. The act creates new regulations on the working conditions of warehouse workers in New York State.

In December 2022, New York Governor Kathy Hochul signed into law the Warehouse Worker Protection Act (WWPA). The WWPA requires covered employers to disclose work quotas to current and former covered employees, creates new recordkeeping requirements, and prohibits retaliation for exercising protecting rights. Governor Hochul signed a second bill on March 3, 2023 amending and clarifying the WWPA; as amended, the WWPA takes effect on June 19, 2023.

Covered Employers

The WWPA applies to New York employers with (a) 100 or more nonexempt workers at a single specified “warehouse distribution center” or (b) 1,000 or more nonexempt workers at one or more “warehouse distribution centers” across the entire state.

Importantly, the worker count not only includes workers directly employed by the covered employer, but also (a) workers who are employed “indirectly” through an agent, third-party employer, or staffing agency, as well as independent contractors to the extent the covered employer “exercises control over the wages, hours, or working conditions” of those workers; and (b) workers who are employed by a member of a controlled group of corporations of which the covered employer is a member.

Exempt employees do not count toward the coverage threshold. The amended WWPA also expressly excludes from both the threshold count and coverage any drivers and couriers “to or from a warehouse distribution center.”

The WWPA’s definition of “warehouse distribution center” is based on the North American Industry Classification System Codes and only covers the following categories of warehouses:

  • Code 493 for warehousing and storage (but excludes farm product warehousing and storage)
  • Code 423 for merchant wholesalers, durable goods
  • Code 424 for merchant wholesalers, nondurable goods
  • Code 454,110 for electronic shopping and mail-order houses
  • Code 492,110 for couriers and express delivery services

Employer Requirements and Obligations

Among the amended WWPA requirements is that covered employees be provided a written description of any work-related “quota[s]” required by the covered employer. The law defines “quota” to include, among other things, “a work standard which . . . an employee is assigned or required to perform . . . under which the employee may suffer an adverse employment action if they fail to complete the performance standard.”

More specifically, the law explicitly includes any “quotas” involving designated productivity speeds, a quantified number of tasks, a quantified amount of material, and defined periods for which the employee’s performance will be measured for the purposes of continued employment. For example, a requirement that a worker pack 100 packages per hour or face discipline would likely qualify as a “quota” under the WWPA.

The written descriptions must include any potential adverse employment action that could result from a failure to meet the quota. The employer must provide the written description of any quotas within 30 days of the WWPA going into effect (as amended, by July 19, 2023).

Employers must then provide the written description to new employees upon hire; if there is a change in the quota, employers must distribute an updated description to all affected employees within two days of the change. The WWPA also requires that employers provide the written description in both English and “the language identified by each employee as the primary language of such employee.”

Under the WWPA, current employees also have the right to request, at any time, a written description of any quota to which they are subject. In addition, current and former employees may request a copy of the quota(s), a copy of “the most recent ninety days of the employee’s own personal work speed data,” and a copy of “the aggregate work speed data for similar employees at the same establishment for the same time period” if they believe they were disciplined based on a quota or if a quota has prevented them from taking a legally protected rest, meal, or bathroom break. Any requested written descriptions must also be provided in English and in the primary language of the individual making the request.

The WWPA also imposes additional recordkeeping requirements on covered employers. The law does not specify what records must be maintained, but covered employers are required to keep records for three years that allow for “compliance with employee or commissioner requests for data.” Without further guidance from the New York State Department of Labor (NYS DOL), employers should consider, at minimum, maintaining a record of the written quota descriptions required by the WWPA.

Retaliation and Remedies

The WWPA establishes a rebuttable presumption of unlawful retaliation for any adverse actions, including discipline or termination, taken within 90 days of either (1) an employee’s request for records under the WWPA or (2) an employee’s complaint of an alleged WWPA violation provided “to the commissioner, the department, other local or state governmental agency, or the employer.”

If the NYS DOL, which is charged with enforcement of the WWPA, determines that a company violated the law, the NYS DOL may issue an order requiring compliance and payment of civil penalties. These penalties range from up to $1,000 for the first violation, $2,000 for the second violation, and $3,000 for all subsequent violations.

Analysis

The WWPA represents a significant expansion of the disclosure and recordkeeping requirements for covered employers that operate warehouses in New York State.

In assessing their obligations under the WWPA, employers should first determine if they are covered employers subject to the law by reviewing the number of workers at each “warehouse distribution center” they operate in the state, including workers they could be argued to employ “indirectly” by exercising control over their wages, hours, or working conditions as well as individuals “employed by a member of a controlled group of corporations.”

If an employer determines it is covered by the WWPA, it should prepare written descriptions of any “quotas” it may maintain, defined broadly as any “work standard which   . . . an employee is assigned or required to perform . . . under which the employee may suffer an adverse employment action if they fail to complete the performance standard.”

Covered employers should also be prepared to provide the written descriptions in English and in the primary language of any individual to whom they may be required to send such descriptions. Once prepared, the written quota descriptions should be distributed to covered employees by July 19, 2023 and, following that, upon hire of covered employees or within two days of any changes being made.

Questions Left Unanswered

The NYS DOL has not yet published guidance regarding the WWPA, leaving several unanswered questions. For example:

  • As with many other New York laws, the WWPA does not define what constitutes a “single violation.” Accordingly, in an enforcement action the NYS DOL may determine that the failure to distribute written quotas to a group of employees, for example, constitutes a single violation or it may determine that there was a separate violation as to each employee.
  • Although the NYS DOL is charged with enforcement of the WWPA, the WWPA does not address a private right of action.
  • The WWPA requires employers to include in their threshold count individuals “employed by a member of a controlled group of corporations,” but the WWPA does not define “controlled group of corporations.” Before the law was amended, “controlled group of corporations” was defined by borrowing a modified definition from the Internal Revenue Code, 26 USC § 1563. However, this definition was struck in the WWPA as amended, and as such, it is unclear what definition of “controlled group of corporations” should apply.

Contacts

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