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

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Date Published: 02/16/2021 09:00 PM
AB701:v99#DOCUMENT


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 introduced, 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 would require specified employers to provide to each employee, defined as a nonexempt employee who works at a warehouse distribution center, 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. 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 health and safety laws.
(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 to propose to the Occupational Safety and Health Standards Board for the board’s review and adoption a standard that minimizes the risk of illness and injury among employees working in warehouse distribution centers that employ production quotas, as provided. Because this bill would expand the definition of an existing crime, it would impose a state-mandated local program.
(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) “Employee” means a nonexempt employee who works at a warehouse distribution center.
(d) “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.
(e) “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.
(f) “Quota” means a work standard under which an employee is assigned or required to 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.
(g) “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.
 The Division of Labor Standards Enforcement shall enforce the provisions of this part. As part of that enforcement the Division of Labor Standards Enforcement may subpoena and inspect records of warehouse distribution center quotas.

2102.
 The commissioner shall have authority to adopt regulations implementing this part.

2103.
 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.

2104.
 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.

2105.
 Each employer shall provide to each employee 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.

2106.
 Each employer shall provide to each employee a revised written description of the quota described in Section 2105 if the quota is altered or the adverse employment consequences for failure to meet the quota are changed.

2107.
 An employer shall not take adverse employment action against an employee for failure to meet a quota that has not been disclosed to the employee pursuant to Section 2105 or Section 2106 or for failure to meet a quota that does not allow a worker to comply with health and safety laws.

2108.
 Any actions taken by an employee to comply with health and safety laws or Division of Occupational Safety and Health standards shall be considered time on task and productive time for purposes of any quota or monitoring system.

SEC. 3.

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

6726.
 (a) By ______, 2022, the division shall propose to the standards board for the board’s review and adoption a standard that minimizes the risk of illness and injury among employees working in warehouse distribution centers that employ production quotas, as defined in subdivision (f) of Section 2100. The standard shall be based on work activity levels, measurements of safe production quotas, and comparative analysis of the relationship of quotas in warehouse distribution centers and incidence of illness and injury.
(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.