Sec. 101. Warehouse worker protections

5,255 words·~24 min read·/bill/118/s/4260/is/section-101

A research copy — for the controlling text, always check the official state or federal source. Not legal advice.

The Fair Labor Standards Act of 1938 is amended— by inserting after section 4 ( 29 U.S.C. 204 ) the following: There is established in the Wage and Hour Division of the Department of Labor the Fairness and Transparency Office. The President shall appoint a Director of the Fairness and Transparency Office to head the Fairness and Transparency Office. The Director— may select, appoint, and employ, without regard to the provisions of sections 3309 through 3318 of title 5, United States Code, individuals directly to positions in the competitive service, as defined in section 2102 of such title, to carry out the duties of the Director under this Act; and may fix the compensation of the individuals described in subparagraph

(A)without regard to chapter 51 and subchapter III of chapter 53 of title 5, United States Code, relating to classification of positions and General Schedule pay rates, except that the rate of pay for such individuals may not exceed the rate payable for level V of the Executive Schedule under section 5316 of that title. The Director shall establish a Fairness and Transparency Advisory Board to advise and consult on the exercise of the functions of the Director under this Act. The Fairness and Transparency Advisory Board established under subparagraph

(A)shall be composed of— as the Director determines appropriate, covered employers and covered employees or representatives of covered employers and covered employees; and at least one of each of the following: Worker protection experts. Civil rights experts. Health and safety experts. Workplace technology experts. Disability law experts. Representatives of labor organizations. Representatives of worker advocacy organizations. The Director shall— appoint members to the advisory board established under subparagraph (A); and ensure a partisan balance in the membership of the advisory board. The advisory board established under subparagraph

(A)shall meet— at the call of the Director; and not less than 2 times annually. A member of the Fairness and Transparency Advisory Board established under subparagraph

(A)who is not an officer or employee of the Federal Government shall— be entitled to receive compensation at a rate fixed by the Director while attending meetings of the advisory board, including travel time; and receive travel expenses, including per diem in lieu of subsistence, in accordance with applicable provisions under subchapter I of chapter 57 of title 5, United States Code. The Fairness and Transparency Advisory Board established under subparagraph

(A)shall be exempt from chapter 10 of title 5, United States Code (commonly known as the Federal Advisory Committee Act ). The Director may, as may from time to time be needed, use any voluntary or uncompensated services. Attorneys appointed under this subsection or the Solicitor of Labor may appear for and represent the Director in any litigation. The Secretary, acting through the Director and the Administrator of the Wage and Hour Office, may issue orders and guidance or promulgate regulations as may be necessary or appropriate to enable the Secretary to carry out the purposes and objectives of this section, and to prevent evasions thereof. In issuing orders and guidance or promulgating regulations under this subsection, the Secretary, acting through the Director and the Administrator of the Wage and Hour Office, may consult with the Occupational Safety and Health Administration and Federal agencies that have jurisdiction over labor and employment issues, including the Equal Employment Opportunity Commission, the National Labor Relations Board, the National Mediation Board, and the Merit Systems Protection Board. ; by inserting after section 7 ( 29 U.S.C. 207 ) the following: In this section: The term adverse employment action , with respect to a covered employee, means a change by the covered employer of the covered employee in the compensation, terms, conditions, or privileges of the job of the covered employee that, from the perspective of a reasonable person, puts the covered employee in a materially adverse position than prior to the change, including termination, a reduction in benefits, disciplinary action, demotion, promotion, 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. The term aggregated work speed data means employee work speed data that a covered employer has combined, or collected together, in a summary or other form so that the employee work speed data cannot, at any point, be identified or linked with any specific covered employee. The term covered facility means any warehouse distribution center described in the North American Industry Classification System code— 493, for warehousing and storage; 423, for merchant wholesalers, durable goods; 424, for merchant wholesalers, nondurable goods; 454110, for electronic shopping and mail-order houses; or 492110, for couriers and express delivery services. The term covered employee means an employee who— is employed by an employer for the performance of work at a covered facility; and is subject to a quota while performing work at such covered facility. The term covered employer means an employer that— is engaged in commerce, in the production of goods for commerce, or in an enterprise engaged in commerce or in the production of goods for commerce, including such an employer that is a contractor, subcontractor, temporary service firm, staffing agency, independent contractor, employee leasing entity, or similar entity; and employs a covered employee for the performance of work at a covered facility. The term defined time period means any unit of time measurement equal to or less than one day, including hours, minutes, and seconds and any fraction thereof. The term designated employee representative means any representative designated by a covered employee, including an employee representative that has a collective bargaining relationship with the covered employer of the covered employee. The term Director means the Director of the Fairness and Transparency Office established by section 5. The term egregious misconduct , with respect to a covered employee, means deliberate or grossly negligent conduct that endangers the safety or well-being of the covered employee, co-workers of the covered employer, customers, or other persons, including discrimination against or harassment of co-workers, customers, or other persons. The term employee work speed data means information a covered employer collects, stores, analyzes, or interprets relating to the performance of work by a covered employee of the covered employer for a quota, including information with respect to the— quantities of tasks performed by the covered employee; quantities of items or materials handled or produced by the covered employee; rates or speeds of tasks performed by the covered employee; measurements or metrics of covered employee performance in relation to a quota; or time categorized with respect to the covered employee as performing tasks or not performing tasks. The term quota means an express or implied performance standard or performance target, including such a standard or target used to rank or compare an employee in relation to the performance of another employee or in relation to the past performance of the employee, under which— an employee is actually or effectively assigned, required, or expected within a defined time period (with or without any reasonable accommodation provided under Federal, State, or local law) to— perform— a quantified number of tasks; or at a specified productivity speed; or handle or produce a quantified amount of material without a certain number of errors or defects; and such assignment, requirement, or expectation is measured at the individual or group level for such defined time period; actions by an employee are categorized and measured between time performing tasks and not performing tasks within a defined time period; or increments of time of a defined time period during which an employee is or is not doing a particular activity are measured, recorded, or tallied. The term similarly situated covered employee , with respect to a covered employee, means another covered employee who holds the same job or responsibilities as the covered employee. The term Tribal government means the recognized governing body of an Indian Tribe. The term workplace surveillance means any employer surveillance (on- or off-duty) with respect to an employee, including the detection, monitoring, interception, collection, exploitation, preservation, protection, transmission, or retention of data concerning activities or communications with respect to the employee, including through the use of a product or service marketed, or that can be used, for such purposes, such as a computer, telephone, wire, radio, camera, sensor, electromagnetic, photoelectronic, handheld or wearable device, or photo-optical system. The term work station means the area of a covered facility within which a covered employee is assigned to perform tasks for the longest duration of time during a day. On the later of the date a covered employee is hired by a covered employer or 180 days after the date of enactment of this section, each covered employer shall provide to each covered employee of the covered employer— a written description of each quota to which the covered employee is subject, including— as applicable, the quantified number of tasks to be performed or of materials to be produced or handled, or other performance measure, within the defined time period, for the quota; any potential discipline or adverse employment action that could result from failure to meet the quota; how performance targets or performance standards for the quota are calculated; whether there is any incentive or bonus program associated with meeting or exceeding the quota and, if applicable, how the incentive or bonus program operates; and how the quota is monitored, including a description of— what employee work speed data are being collected; how the employee work speed data are being collected, including a description of any workplace surveillance technology used on the covered employee by the covered employer; where and when the employee work speed data are being collected; the frequency of the collection; where the storage of the employee work speed data is located; the business purposes for which the employee work speed data are being used; and as applicable, the identity of any third party— used for such workplace surveillance; to which data from such workplace surveillance is transferred; and from which data of the covered individual is or may be purchased or acquired; and a written description of and training with respect to how the covered employee may file a complaint regarding a violation of this section or a standard promulgated under title III of the Warehouse Worker Protection Act . Each covered employer shall provide to any applicable covered employee an updated written description of any information provided under paragraph

(1)not less than 2 business days before any changes with respect to such information are made. A covered employer that takes an adverse employment action against a covered employee for work performance that does not meet requirements with respect to a quota shall provide— a written explanation to the covered employee regarding the manner in which the covered employee failed to perform, including a description of the applicable quota and a comparison of such work performance to such quota; and if the adverse employment action was based on employee work speed data, a copy of the employee work speed data in a human-readable format that a reasonable individual can understand. A covered employer that, with respect to any covered employee who is subject to a quota, takes an adverse employment action against such covered employee for any reason that is unrelated to compliance with the quota shall provide to such covered employee a written confirmation that such action was unrelated to compliance with the quota. Except as provided in clause (ii), a covered employer that seeks to terminate a covered employee shall, regardless of whether the termination relates to work performance with respect to a quota, provide to the covered employee a written notice of the intent to terminate the covered employee. Notwithstanding subparagraph (A), a covered employer may terminate a covered employee without providing such written notice if the covered employee engaged in egregious misconduct. Each covered employer shall— provide any written description, notice, explanation, or confirmation described in paragraph (1), (2), (3), or

(4)to a covered employee— through a human representative of the covered employer at the work station of the covered employee; and in a manner required by the Director that— is accessible; allows the covered employee to transport the data in the description, notice, explanation, or confirmation without hindrance; is in plain language; and is in the primary language of the covered employee; and make such description, notice, explanation, or confirmation available to the covered employee electronically. A covered employer may not require any quota for a covered employee that would— prevent— compliance with any required meal or rest period or any other break required by Federal, State, or local law; compliance with health and safety provisions required by Federal, State, or local law; the use by the covered employee of bathroom facilities, including reasonable travel time to and from bathroom facilities that takes into account the architecture of the covered facility; or compliance with a covered employee’s right to reasonable accommodations or nondiscrimination as required by Federal, State, or local law; set a performance target or performance standard that measures total output for the covered employee over an increment of time that is shorter than one day; measure and evaluate the output or performance of a covered employee during any paid or unpaid break to which the covered employee is entitled under applicable law, contract, or industry standard, including breaks to use bathroom facilities and reasonable travel time to and from bathroom facilities; prevent or discourage the covered employee from exercising any right under the National Labor Relations Act ( 29 U.S.C. 151 et seq. ) or any other Federal law; prevent or discourage the covered employee from exercising any right guaranteed in an applicable collective bargaining agreement; or violate the generally accepted principles of work measurement as set forth in the Code of Work Measurement Ethics of the American Institute of Industrial Engineers and recognized by the Secretary. A covered employer may not take adverse employment action against a covered employee for failure to meet a quota that— violates paragraph (1); was not described to the covered employee in accordance with subsection (b); is based solely on ranking the performance of the covered employee in relation to the performance of another covered employee or in relation to the past performance of that covered employee; or is based on continuously measuring, recording, or tallying increments of time within a defined time period during which a covered employee is or is not doing a particular activity. In establishing, maintaining, or using employee work speed data with respect to a quota for a covered employee, a covered employer may not collect, use, maintain, or transfer data on or of the covered employee except as strictly necessary to monitor the compliance of the covered employee with the quota. In establishing, maintaining, or using employee work speed data with respect to a quota for a covered employee, a covered employer may not disclose any information collected on a covered employee with respect to the quota to any other covered employee of the covered employer except as strictly necessary to fulfill a specific and reasonable business rationale of the covered employer. Each covered employer shall— maintain contemporaneous records, with respect to each covered employee of the covered employer, of— the employee work speed data of each such covered employee; the aggregated work speed data for similarly situated covered employees at the same place where each such covered employee performs work for the covered employer; and the written descriptions of the quota of each such covered employee provided under subsection (b)(1); maintain such records for the duration of the employment of each relevant covered employee; and make such records available to the Secretary upon request. Each covered employer shall enable a covered employee, upon request of the covered employee at or after the time of any employee work speed data collection with respect to the covered employee, to supplement the employee work speed data by recording any reason the covered employee provides for any defined time period during which the covered employee was not performing work-related tasks, including because the covered employee was taking a paid or unpaid break, using a bathroom facility (including reasonable travel to and from the facility), reporting an injury or receiving attention due to an injury, exercising a right guaranteed under the National Labor Relations Act ( 29 U.S.C. 151 et seq. ) or another Federal law, or exercising a right guaranteed under an applicable covered bargaining agreement. Each covered employer shall enable a covered employee, upon request of the covered employee at or after the time of any data collection with respect to the covered employee, to review and request correction of the employee work speed data in accordance with clause (ii). A covered employer that receives a request by a covered employee under clause

(i)shall— investigate and determine whether the employee work speed data is inaccurate; and if determined to be inaccurate— promptly correct the inaccurate data and notify the covered employee of the covered employer’s determination and correction; and review and adjust, as appropriate, any adverse employment action that was, partially or solely, based on the inaccurate data and notify the covered employee of the adjustment. After the termination of employment of a covered employee of a covered employer, the covered employer shall— for not less than 3 years after the date of such termination, retain the records described in paragraph

(1)with respect to the 6-month period prior to such date; and make such records available to the Secretary upon request. Nothing in this subsection shall require a covered employer to keep records described in paragraph

(1)with respect to employee work speed data if such covered employer does not otherwise monitor employee work speed data. A covered employer shall, upon receiving a request under paragraph

(2)or (3), provide the relevant copies described in such paragraphs to, as the case may be, the covered employee, designated employee representative, or individual who was a covered employee— except as provided in subparagraph (B)(ii), at no cost to the covered employee, designated employee representative, or individual who was a covered employee; with respect to— a covered employee, by a human representative of the covered employer; or a designated employee representative or an individual who was a covered employee, by a human representative of the covered employer or through the mail (at the cost of the designated employee representative or individual, respectively); and as soon as practicable but not later than— 7 business days after receipt of a request for such copies with respect to employee work speed data or aggregate work speed data; or 2 business days after receipt of a request for any other copy. A covered employee, or a designated employee representative of such covered employee at the request of the covered employee, may request from the covered employer of the covered employee a copy of the written description described under subsection (b), a copy of the employee work speed data (in a human-readable format that a reasonable individual can understand) of the covered employee for the preceding 6-month period, and a copy of the aggregated work speed data (in a human-readable format that a reasonable individual can understand) for similarly situated covered employees at the same place where the covered employee performs work for the covered employer for the preceding 6-month period. An individual who was a covered employee with respect to a covered employer, or a designated employee representative with respect to such an individual, may, not later than 3 years after the date of termination of employment of the covered employee with the covered employer, request from the covered employer a copy of— the written description described under subsection

(b)effective on the date of termination of the covered employee; the employee work speed data (in a human-readable format that a reasonable individual can understand) of the covered employee for the 6-month period prior to such date of termination; and the aggregated work speed data (in a human-readable format that a reasonable individual can understand) for similarly situated covered employees at the same place where the covered employee performs work for the covered employer for such 6-month period. Nothing in this subsection shall require a covered employer to— monitor employee work speed data; or provide information related to employee work speed data if the covered employer does not otherwise monitor such employee work speed data. Each covered employer shall post, in a conspicuous and accessible location, a notice in the covered facility of the covered employer regarding the rights of covered employees under this section, including what constitutes a permissible quota, the right to request quota descriptions and employee speed data information, and the right to make a complaint to Federal authorities regarding a violation of any right under this section. Each notice described in paragraph

(1)shall be in a manner required by the Director that— is in plain language; and is in English, Spanish, and any other language that constitutes the primary language of any covered employee at the covered facility. Each covered employer shall— with respect to each covered employee of such covered employer— provide, for every 4 hours of work by such a covered employee, to the covered employee not less than one 15-minute rest break paid at the regular rate at which the covered employee is employed; and provide, at the time the covered employer hires such a covered employee, notice to the covered employee, in plain language and the primary language of the covered employee, that— the covered employee is entitled to the paid rest breaks described in clause (i); retaliation by the covered employer against the covered employee for requesting or taking such paid rest breaks is prohibited; and the covered employee, or a designated employee representative of the covered employee, has a right to file a complaint with the Secretary for any violation by the covered employer of this subsection; and display, in a conspicuous and accessible location, a sign at each covered facility of the covered employer that includes, in English, Spanish, and any other language that constitutes the primary language of any covered employee at the covered facility, the information in the notice described in subparagraph (A)(ii). Not later than 180 days after the date of enactment of this section, the Secretary shall issue regulations with respect to the design and content of the sign described in paragraph (1)(B), including a sample design. Nothing in this subsection shall be construed to supersede or preempt any Federal, State, or local law or collective bargaining agreement requiring longer paid rest breaks than those required under paragraph (1)(A)(i). A person, including a covered employer, an agent of a covered employer, or person acting as or on behalf of a covered employer conducting hiring or any related activity, or an officer or agent of any entity, business, corporation, partnership, or limited liability company, may not— discharge or in any way retaliate, discriminate, or take any adverse employment action against any individual for exercising any right conferred under this section, or for being perceived as exercising such a right, including for— requesting copies under subsection (f); filing a complaint under subparagraph

(A)of section 16(f) regarding a violation of this section or designating a representative in accordance with subparagraph

(B)of such section to file such a complaint; or commencing a proceeding under section 16(b) for a violation of this section; or otherwise prevent an individual for exercising such a right or take any action against an individual that might deter a reasonable employee from asserting a right conferred under this section. The protections under paragraph

(1)shall apply to any individual who mistakenly, but in good faith, alleges a violation of a requirement of this section. A complaint or other communication by an individual, including a covered employee, may be the exercise of a right for purposes of paragraph

(1)regardless of whether the complaint or communication is in writing or makes explicit reference to this Act. If a person takes adverse action against a covered employee within 90 days of the covered employee engaging, or attempting to engage in, activities protected by paragraph (1), such conduct shall establish a rebuttable presumption that the adverse action is an adverse action in violation of such paragraph. Such presumption may be rebutted by clear and convincing evidence that— the action was taken for other permissible reasons; and the engaging or attempting to engage in activities protected by paragraph

(1)was not a motivating factor in the adverse action. Not later than 90 days after the date of the enactment of this section, the Director shall convene a task force with labor organizations, worker advocacy organizations, and covered employees to develop strategies for labor organizations and worker advocacy organizations to— assist in the enforcement of this section; train covered employees with respect to new rights provided through this section; and provide the Director with recommendations on the implementation of regulations related to this section. ; in section 9 ( 29 U.S.C. 208 ), by striking and investigation and inserting , investigation, or inspection ; by repealing section 10 ( 29 U.S.C. 210 ); in section 11 ( 29 U.S.C. 211 ), by adding at the end the following: The Secretary, acting through the Director of the Fairness and Transparency Division, shall, as provided in subsection

(a)and paragraph (2), investigate violations of section 8, including any violations of any regulation or order issued with respect to that section. In addition to powers otherwise provided to the Secretary under subsection (a), the Secretary, in investigating violations of section 8, may upon presenting appropriate credentials to the owner, operator, or agent in charge— enter without delay and at reasonable times any covered facility of a covered employer; and inspect and investigate during regular working hours and at other reasonable times, and within reasonable limits and in a reasonable manner, any such covered 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. In conducting an inspection during an investigation into a violation of section 8, the Secretary shall permit, at the request of a covered employee, a representative of a labor organization or a worker advocacy organization, or another designee of the covered employee, to accompany any inspectors during such inspection. A covered employee may, regardless of the relationship between the covered employee and the labor organization, worker advocacy organization, or other designee, anonymously request to the Secretary that the Secretary permit a representative of such labor organization, worker advocacy organization, or other designee accompany inspectors during an inspection in accordance with paragraph (1). Not later than 30 days after an event described in paragraph (2), the Secretary shall open an investigation under this section (that includes an on-site inspection) into any covered employer to determine if such covered employer is violating section 8. An event described in this paragraph is, with respect to a covered employer, either of the following: The Secretary determines that the covered employer— has an annual total of employee work hours that is not less than 40,000 hours; and has an annual employee injury rate, overall or at a worksite, that is not less than 1.5 times the warehousing industry’s average annual injury rate, as determined by the Bureau of Labor Statistics in the most recent (as of such determination) publication regarding fatal and nonfatal occupational injuries and illnesses data. The Secretary receives, during any one-year period, not less than— 5 credible complaints from covered employees of the covered employer, individuals who were covered employees of the covered employer, or designated representatives of such covered employees or individuals, about violations under section 8 at a worksite; or 10 credible complaints from covered employees of the covered employer, individuals who were covered employees of the covered employer, or designated representatives of such covered employees or individuals, about such violations at multiple worksites operated by the covered employer. In conducting an investigation under paragraph (1), the Secretary shall select representatives of a labor organization or a worker advocacy organization who have specific knowledge of the relevant industry to conduct outreach to workers with respect to such investigation and aid and accompany investigators in such investigation. For purposes of subsections

(e)and (f), the terms covered employee , covered employer , and covered facility have the meanings given such terms in section 8(a). ; in section 15(a) ( 29 U.S.C. 215(a) )— in paragraph (5), by striking ; and and inserting a semicolon; in paragraph (6), by striking the period at the end and inserting ; and ; and by adding at the end the following: to violate any of the provisions of section 8. ; and in section 16 ( 29 U.S.C. 216 )— in subsection (b)— by striking 15(a)(3) each place it appears and inserting 8, 15(a)(3), ; in the second sentence, by inserting and, in the case of a violation of section 8, of an amount for the direct or foreseeable pecuniary harms resulting from the violation and an amount equal to $10,000 per violation of subsection (b), (d), (e), (f), or

(g)of such section or an amount equal to $25,000 per violation of subsection (c), (h), or

(i)of such section before the period at the end of the sentence; and in the fifth sentence, by striking No and inserting Except with respect to an action brought regarding a violation of section 8, no ; and in subsection (e)— by redesignating paragraphs (3), (4), and

(5)as paragraphs (4), (5), and (6), respectively; and by inserting after paragraph (2), the following: Any person who violates section 8 shall be subject to a civil penalty— in an amount not more than $76,987 per violation; or for repeat or willful violations, in an amount not more than $769,870 per violation. ; and in paragraph (4)(C), as so redesignated, by striking section 15(a)(4) and inserting paragraph

(4)or

(7)of section 15(a) ; and by adding at the end the following: A covered employee or an individual who was a covered employee may— file a complaint of a violation of section 8 with the Secretary; and designate a representative of a labor organization or worker advocacy organization, regardless of the relationship between the covered employee or individual and the labor organization or worker advocacy organization, to— file the complaint on behalf of the covered employee or individual; or represent the covered employee or individual for purposes of engagement with the Secretary regarding such complaint, including being present at employee interviews and participating in workplace inspections, conferences, and settlement negotiations. For purposes of paragraph (1), the term covered employee has the meaning given such term in section 8(a). Notwithstanding chapter 1 of title 9, United States Code (commonly known as the Federal Arbitration Act ), no predispute arbitration agreement or predispute joint-action waiver (as those terms are defined in section 401 of title 9, United States Code) shall be valid or enforceable with respect to claims arising under this Act for violations of section 8. Nothing in this subsection shall limit the enforceability of any arbitration provision in a collective bargaining agreement between a covered employer (as defined in section 8(a)) and a labor organization. An employee who brings an action for a violation of section 8 on behalf of employees similarly situated shall be considered to have satisfied paragraphs

(1)through

(4)of rule 23(a) of the Federal Rules of Civil Procedure for purposes of such an action. .

Connectionstraces to 8

Traces to 8 documents

U.S. Code