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Quick Hits

  • On May 2, 2024, four Democratic senators introduced S.4260, the Warehouse Worker Protection Act (WWPA), which would limit production requirements and prohibit discipline if those expectations are above what is allowed under the act.
  • The bill calls for the creation of a Fairness and Transparency Office within the DOL’s Wage and Hour Division regarding implementation of regulations related to the WWPA.
  • The WWPA also would create a “Quota Task Force” that would involve labor organizations, worker advocacy organizations, and covered employees.
  • The bill follows a little less than a year since OSHA issued an NEP with a focus on the warehousing and distribution center industry, and certain “high injury retail establishments.”

The bill, S.4260—the Warehouse Worker Protection Act—would cover industries that fall into the following North American Industry Classification System (NAICS) codes:

  • 493, warehousing and storage
  • 423, merchant wholesalers, durable goods
  • 424, for merchant wholesalers, nondurable goods
  • 454110, for electronic shopping and mail-order houses
  • 492110, for couriers and express delivery services

The bill follows a little less than a year since the Occupational Safety and Health Administration (OSHA) issued a national emphasis program (NEP) focusing on the warehousing and distribution center industry and certain “high injury retail establishments.” The NEP, issued on July 13, 2023, included a ninety-day outreach period, to be followed by two years and nine months of enforcement activity (unless renewed the NEP expires at the end of three years). Publicly available statistics about the NEP are nonexistent, ostensibly because enforcement activity under the NEP has not reached the one-year milestone. California, New York, and Washington State have implemented similar legislation.

The bill would compel employers in the specified NAICS codes to provide, within 180 days of an employee’s commencement of employment, the employee written notice of:

  • production expectations;
  • discipline that could result from failing to meet those expectations;
  • the method of determining production expectations;
  • whether there are incentives for meeting or exceeding the production expectations;
  • how productivity is confirmed; and
  • a written description of and training on how to file a complaint under the WWPA.

The bill also would require covered employers to give employees an updated written description of any of the above information two business days before a change in productivity level is implemented.

In order to take disciplinary action against an employee for failing to meet productivity requirements, an employer would have to provide the employee with “a written explanation … regarding the manner in which the covered employee failed to perform,” including a description of the productivity level and how the employee failed to meet that level in comparison to the productivity requirements. Any disciplinary action not tied to productivity would not necessarily be reduced to a written explanation under the WWPA.

If a covered employee is to be discharged due to a lack of productivity, notice has to be provided, unless the employee engaged in egregious misconduct. The WWPA does not identify how much notice is to be provided or the content of the notice. The WWPA would limit the level of productivity covered employers can require and prohibit employers from taking discipline if those expectations are above what is allowed under the WWPA.

In addition to these limitations on covered employers, the WWPA would also require covered employers to maintain records related to how they determined the appropriate productivity level, to provide covered employees access to those records, and to retain them for a three-year period. Not only would covered employees be allowed access to the records, “designated employee representatives of an individual who was a covered employee” would be able to request them.

Covered employers would have to post—“in plain language and … in English, Spanish, and any other language that constitutes the primary language of any covered employee”—a new workplace notice that includes the following information:

  • “the rights of covered employees”
  • “what constitutes a permissible [productivity level]”;
  • the right to request a description of productivity level expectations;
  • “employee [work] speed data”;
  • the right to request data concerning the productivity level; and
  • “the right to make a complaint to [f]ederal authorities regarding a violation of a right under [the WWPA].”

All covered employees would be entitled to a fifteen-minute paid break after every four hours of work, paid at their regular rate of pay. Moreover, employers would be required to post notices of this requirement, including language stating that covered employers may not retaliate against covered employees “for requesting or taking such paid rest breaks.”

In addition, the WWPA would also create a “Quota Task Force” that would involve labor organizations, worker advocacy organizations, and covered employees to “develop strategies for labor organizations and worker advocacy organizations to ‘assist in the enforcement of’” the WWPA, train covered employees with respect to the WWPA-granted rights, and provide recommendations to a proposed Fairness and Transparency Office within the U.S. Department of Labor’s Wage and Hour Division regarding implementation of regulations related to the WWPA.

The proposed office would be allowed to engage in investigations of a covered employer’s “facility and all pertinent conditions, structures, machines, apparatus, devices, equipment, and materials therein, and to question privately any such covered employer, owner, operator, agent, or covered employee.” Whether counsel would be permitted to participate in the interviews of the employer, owner, or operator is unclear, but given the addition of “privately” it would not be unreasonable to assume the expectation would be that the right to counsel would be denied. In those inspections, the secretary of labor would be empowered to select representatives of labor organizations or worker advocacy organizations with specific knowledge of the industry to “aid and accompany” investigators in the investigation.

The bill would impose civil penalties for violations of 29 U.S.C. §§ 206 and 207 in amounts equal to $10,000 and $25,000. Violations of 29 U.S.C. § 8 would be subject to civil penalties in amounts not more than $76,987 per violation, or, for repeat or willful violations, in amounts not more than $769,870 per violation. The WWPA would also require the director of the Fairness and Transparency Office and the administrator of the Wage and Hour Division to jointly enter into a memorandum of understanding with the assistant secretary of labor for occupational safety and health “to encourage efficient enforcement of relevant labor laws, including … cross-training of inspectors and investigators.”

Within a year of the enactment of the WWPA, OSHA would be required to publish a proposed standard requiring that all covered employers:

  • have readily available a person “adequately trained to render first aid”; and
  • provide all covered employees access to an occupational medical consultation service “through a physician who is board certified in occupational medicine.”

OSHA would also be required to publish a final standard incorporating these two requirements not later than three years after the WWPA’s enactment.

The bill also directs OSHA to publish a proposed ergonomic program management standard not later than three years after the enactment of the WWPA. The proposed standard would include requirements for:

  • “hazard identification and ergonomic job evaluations for covered employees”;
  • “hazard control at covered facilities, which may rely on the principles of the hierarchy of controls and may include measures such as equipment and workstation redesign, work pace reductions, or job rotation to less forceful or repetitive jobs”;
  • “training for covered employees”; and
  • “medical management for covered employees.”

The bill sets forth a requirement that OSHA publish a final standard not more than four years after the date of enactment of the WWPA.

OSHA would also be tasked with promulgating an ergonomics program management standard under which employers would be required to include employees or their representatives in identifying hazards and ergonomic job evaluations.

Though OSHA has attempted to implement an ergonomics standard in the past, that effort failed due to the fact that it lacked the requisite congressional authority to do so. This provision would give OSHA that needed authority.

Beyond these impacts on the covered workplace, the bill also proposes to alter the definition of retaliation or adverse employment action. The included definition of “Adverse Employment Action” includes typical things such as termination, a reduction in benefits, disciplinary action, demotion, transfer, imposition of a work schedule more burdensome to the covered employee, reduction of scheduled hours, adjustment in ability for promotion, or other modifications to compensation, terms, conditions, or privileges of employment. In what may be a first-ever proposal, the bill also considers promotion to be an adverse employment action.

Key Takeaways

The WWPA would dramatically alter the work environment in the covered workplaces, give organized labor unprecedented access to those workplaces, and create standards in those workplaces that OSHA has sought to establish for twenty-five years. While there is not yet a companion bill in the U.S. House of Representatives, it is conceivable that the legislation could become law before this fall’s federal, state, and local elections.

Ogletree Deakins’ Workplace Safety and Health Practice Group will continue to monitor developments and provide updates on the Retail, Trucking & Logistics, and Workplace Safety and Health blogs as additional information becomes available.

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