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AB-701 Warehouse distribution centers.(2021-2022)

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Date Published: 05/17/2021 09:00 PM
AB701:v97#DOCUMENT

Amended  IN  Assembly  May 17, 2021
Amended  IN  Assembly  April 12, 2021

CALIFORNIA LEGISLATURE— 2021–2022 REGULAR SESSION

Assembly Bill
No. 701

Introduced by Assembly Member Lorena Gonzalez

February 16, 2021

An act to add Section 6726 to, and to add Part 8.6 (commencing with Section 2100) to Division 2 of, the Labor Code, relating to employment.


LEGISLATIVE COUNSEL'S DIGEST


AB 701, as amended, Lorena Gonzalez. Warehouse distribution centers.
(1) Existing law relating to employment regulation and supervision imposes special provisions on certain occupations and industries. Existing law charges the Labor Commissioner and the Division of Labor Standards Enforcement with the enforcement of labor laws.
This bill, among other things, would require specified employers to provide to each employee, defined as a nonexempt employee who works at a warehouse distribution center, upon hire, with a written description of each quota to which the employee is subject, including the quantified number of tasks to be performed, or materials to be produced or handled, within the defined time period, and any potential adverse employment action that could result from failure to meet the quota. The bill would require, if the quota or the adverse consequences for failure to meet the quota have changed, the employer to provide the employee with a revised written description. provide that an employee shall not be required to meet a quota that prevents compliance with meal or rest periods or health and safety laws. The bill would prohibit an employer from taking adverse action against an employee for failure to meet a quota that has not been disclosed or for failure to meet a quota that does not allow a worker to comply with meal or rest periods or health and safety laws. The bill would require that any action taken by an employee to comply with health and safety laws or division standards be considered time on task and productive time for the purposes of any quotas or monitoring system.

This bill would give a current and former employee, or their representative, the right to inspect or receive a copy of the most recent 3 months of that employee’s personal work speed data, as provided. The bill would require an employer, at the time of hiring, to provide each employee with written notice of the employee’s right to comply with health and safety laws without retaliation, the requirement that actions taken by an employee to comply with health and safety laws be considered productive work time, and the employee’s right to file a complaint with the commissioner or the Division of Occupational Safety and Health. The bill would also authorize a current or former employee to bring an action for injunctive relief to obtain compliance with these requirements and to recover costs and reasonable attorney’s fees.

This bill would provide that if a current or former employee believes that meeting a quota caused a violation of their right to a meal or rest period or required them to violate any health and safety standard, they have the right to request, and the employer is required to provide, a written description of each quota to which the employee is subject and a copy of the most recent 3 weeks of the employee’s own personal work speed data. The bill would require the Labor Commissioner, if any employee files a complaint alleging violations of these provisions, to provide each employee in the workplace with a written notice containing information regarding the employee’s right to report specified violations and regarding the employer being prohibited from retaliating against an employee for reporting unsafe workplace conditions or participating in an investigation by an enforcement agency. The bill would also authorize a current or former employee to bring an action for injunctive relief to obtain compliance with specified requirements, and may, upon prevailing in the action, recover costs and reasonable attorney’s fees in that action.
(2) Under existing law, the California Occupational Safety and Health Act of 1973, the Division of Occupational Safety and Health investigates complaints that a workplace is not safe and may issue orders necessary to ensure employee safety. Under existing law, certain violations of that act or a standard, order, or special order authorized by the act are a crime.
This bill would require the division, by January 1, 2023, to propose to the Occupational Safety and Health Standards Board for the board’s review and adoption a standard that minimizes the risk of musculoskeletal injuries and disorders among employees working in warehouse distribution centers, as provided. Because this bill would expand the definition of an existing crime, it would impose a state-mandated local program. The bill would also require the division, when an employee files a complaint, to provide the employee with a written notice containing specified information regarding their rights.
(3) The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.
This bill would provide that no reimbursement is required by this act for a specified reason.
Vote: MAJORITY   Appropriation: NO   Fiscal Committee: YES   Local Program: YES  

The people of the State of California do enact as follows:


SECTION 1.

 The Legislature finds and declares the following:
(a) The rapid growth of just-in-time logistics and same- and next-day consumer package delivery, and advances in technology used for tracking employee productivity, have led to a rise in the number of warehouse and distribution center workers who are subject to quantified work quotas.
(b) Warehouse and distribution center employees who work under those quotas are expected to complete a quantified number of tasks within specific time periods, often measured down to the minute or second, and face adverse employment action, including suspension or termination, if they fail to do so.
(c) Those quotas generally do not allow for workers to comply with safety guidelines or to recover from strenuous activity during productive work time, leaving warehouse and distribution center employees who work under them at high risk of injury and illness.
(d) The quotas under which warehouse and distribution center employees regularly work also affect their compensation. California and many cities require employers to pay their employees a minimum-wage rate. Warehouse and distribution center employees who work under a quota, however, do not receive the full benefit of minimum wages if their quota is increased to make up for the direct or indirect effect of a minimum-wage increase.
(e) Quotas in occupations that are already physically demanding not only increase accidents, but they also incentivize unsafe work. The workforce in warehouse and logistics is largely comprised of people of color who depend upon these jobs to provide for their families and often see no alternative but to prioritize quota compliance over their own safety.

SEC. 2.

 Part 8.6 (commencing with Section 2100) is added to Division 2 of the Labor Code, to read:

PART 8.6. Warehouse Distribution Centers

2100.
 As used in this part:
(a) “Commissioner” means the Labor Commissioner.
(b) “Defined time period” means any unit of time measurement equal to or less than the duration of an employee’s shift, and includes hours, minutes, and seconds and any fraction thereof.
(c) “Division” means the Division of Occupational Safety and Health.
(d) “Employee” means a nonexempt employee who works at a warehouse distribution center.
(e) (1) “Employee work speed data” means information an employer collects, stores, analyzes, or interprets relating to an individual employee’s performance of a quota, including, but not limited to, quantities of tasks performed, quantities of items or materials handled or produced, rates or speeds of tasks performed, measurements or metrics of employee performance in relation to a quota, and time categorized as performing tasks or not performing tasks.
(2) “Employee work speed data” does not include qualitative performance assessments, personnel records, or itemized wage statements pursuant to Section 226, except for any content of those records that includes employee work speed data as defined in this part.
(f) “Employer” means a person who directly or indirectly, or through an agent or any other person, including through the services of a third-party employer, temporary service, or staffing agency or similar entity, employs or exercises control over the wages, hours, or working conditions of 100 or more employees at a single warehouse distribution center or 1,000 or more employees at one or more warehouse distribution centers in the state. For purposes of this definition, all employees of an employer’s commonly controlled group, as that term is defined in Section 25105 of the Revenue and Taxation Code, shall be counted in determining the number of employees employed at a single warehouse distribution center or at one or more warehouse distribution centers in the state.
(g) “Person” means an individual, corporation, partnership, limited partnership, limited liability partnership, limited liability company, business trust, estate, trust, association, joint venture, agency, instrumentality, or any other legal or commercial entity, whether domestic or foreign.
(h) “Quota” means a work standard under which an employee is assigned or required to perform at a specified productivity speed, or perform a quantified number of tasks, or to handle or produce a quantified amount of material, within a defined time period and under which the employee may suffer an adverse employment action if they fail to complete the performance standard.
(i) “Warehouse distribution center” means an establishment as defined by any of the following North American Industry Classification System (NAICS) Codes, however that establishment is denominated:
(1) 493110 for General Warehousing and Storage.
(2) 423 for Merchant Wholesalers, Durable Goods.
(3) 424 for Merchant Wholesalers, Nondurable Goods.
(4) 454110 for Electronic Shopping and Mail-Order Houses.

2101.
 Each employer shall provide to each employee employee, upon hire, a written description of each quota to which the employee is subject, including the quantified number of tasks to be performed or materials to be produced or handled, within the defined time period, and any potential adverse employment action that could result from failure to meet the quota.

2102.

Each employer shall provide to each employee a revised written description of the quota described in Section 2101 if the quota is altered or the adverse employment consequences for failure to meet the quota are changed.

2103.2102.
 An employee shall not be required to meet a quota that prevents compliance with meal or rest periods or health and safety laws. An employer shall not take adverse employment action against an employee for failure to meet a quota that does not allow a worker to comply with meal and rest periods or health and safety laws, or for failure to meet a quota that has not been disclosed to the employee pursuant to Section 2101 or 2102. 2101.

2104.2103.
 Any actions taken by an employee to comply with health and safety laws or division standards shall be considered time on task and productive time for purposes of any quota or monitoring system.

2105.

(a)Every current and former employee, or their representative, has the right to inspect or receive a copy of the most recent three months of that employee’s personal work speed data.

(b)An employer that receives a written or oral request to inspect or receive a copy of records pursuant to subdivision (a) pertaining to a current or former employee shall comply with the request as soon as practicable, but no later than 21 calendar days from the date of the request.

2104.
 (a) If a current or former employee believes that meeting a quota caused a violation of their right to a meal or rest period or required them to violate any health and safety standard, they have the right to request, and the employer shall provide, a written description of each quota to which the employee is subject and a copy of the most recent three weeks of the employee’s own personal work speed data.
(b) An employer that receives a written or oral request for information pursuant to subdivision (a) shall comply with the request as soon as practicable, but no later than 21 calendar days from the date of the request.

2106.2105.
 For purposes of this part, there shall be a rebuttable presumption of unlawful retaliation if an employer in any manner discriminates, retaliates, or takes any adverse action against any employee within 90 days of the employee doing either of the following:
(a) Requesting information about a quota pursuant to subdivision (a) of Section 2104.

(a)

(b) Making a complaint related to a quota alleging any violation of Sections 2101 to 2104, inclusive, to the commissioner, the division, other local or state governmental agency, or the employer.

(b)Exercising any right under this part.

2107.2106.
 For purposes of this part, if any employee files a complaint with the division exercising a right under this part, the division commissioner alleging violations under this part, the commissioner shall provide each employee in the workplace a written notice containing all of the following information:
(a) The employee’s right to report health and safety violations to the division. meal and rest period violations, or any violations under this part to the commissioner.
(b) The employer’s prohibition from taking adverse action against any employee for reporting unsafe workplace conditions or participating in an investigation conducted by any enforcement agency.

2108.

At the time of hiring, an employer shall provide to each employee a written notice, in the language the employer normally uses to communicate employment-related information to the employee, containing all of the following information:

(a)The employee’s right to comply with health and safety laws without being discharged, demoted, suspended, discriminated or retaliated against, or in any other manner subject to an adverse action.

(b)The requirement that any actions taken by an employee to comply with health and safety laws be considered productive work time for the purposes of any quota or monitoring system.

(c)The employee’s right to file a complaint with the commissioner or the division.

2109.

The commissioner shall enforce the provisions of this part. As part of that enforcement, the commissioner may subpoena and inspect records of warehouse distribution center quotas.

2107.
 Upon receiving a complaint regarding a violation of this part, a state or local enforcement entity may request or subpoena the records of warehouse distribution center quotas and employee work speed data.

2110.2108.
 The commissioner shall have authority to adopt regulations implementing this part.

2111.

Any state or local enforcement entity investigating labor standards may request a copy of an employee’s work speed data.

2112.2109.
 This part does not preempt any city, county, or city and county ordinances that provide equal or greater protection to employees covered by this part.

2113.2110.
 A current or former employee may bring an action for injunctive relief to obtain compliance with this part, and may recover costs and reasonable attorney’s fees in that action. Nothing in this part shall prevent the injured employee from recovering damages from their employer for injury suffered through a violation of this part. Sections 2101 to 2104, inclusive, and may, upon prevailing in the action, recover costs and reasonable attorney’s fees in that action.

2111.
 In any action by a current or former employee that could be brought pursuant to the Labor Code Private Attorneys General Act of 2004 (Part 13 (commencing with Section 2698)) for violations of this part, the employer shall have the right to cure alleged violations as set forth in Section 2699.3.

2114.2112.
 This part does not limit the authority of the Attorney General, a district attorney, or a city attorney, either upon their own complaint or the complaint of any person acting for themselves or the general public, to prosecute actions, either civil or criminal, for violations of this part, or to enforce the provisions thereof independently and without specific direction of the commissioner or the division.

2115.2113.
 The provisions of this part are severable. If any provision of this part or its application is held invalid, that invalidity shall not affect other provisions or applications that can be given effect without the invalid provision or application.

SEC. 3.

 Section 6726 is added to the Labor Code, to read:

6726.
 (a) By January 1, 2023, the division shall propose to the standards board for the board’s review and adoption a standard that minimizes the risk of musculoskeletal injuries and disorders among employees working in warehouse distribution centers, as defined in subdivision (i) of Section 2100. The standard shall be based on, but not be limited to, work pace, work activity levels, recovery time, repetitive motions, forceful exertions, twisting and bending, and other factors and evidence-based recommendations related to musculoskeletal injuries and disorders. The standard shall address, among other considerations, the relationship between quotas and risk factors for musculoskeletal injuries and disorders in warehouse distribution centers that employ production quotas.
(b) The division may subpoena and inspect records of warehouse distribution center quotas pursuant to its authority under Sections 6304.5, 6313, and subdivision (c) of Section 6314. The standards board may subpoena and inspect records of warehouse distribution center quotas in connection with the development of standards under subdivision (a).

SEC. 4.

 No reimbursement is required by this act pursuant to Section 6 of Article XIII B of the California Constitution because the only costs that may be incurred by a local agency or school district will be incurred because this act creates a new crime or infraction, eliminates a crime or infraction, or changes the penalty for a crime or infraction, within the meaning of Section 17556 of the Government Code, or changes the definition of a crime within the meaning of Section 6 of Article XIII B of the California Constitution.