Key Takeaways:

• New York enacts WWPA to protect warehouse workers against unreasonable quotas

• Covered employers must maintain records relating to quotas and work speed data

• Covered employers that impose quota or work speed data should carefully review the WWPA with employment counsel to ensure compliance.

On December 21, 2022, Gov. Hochul signed Bill A10020/S8922A into law, which goes into effect 60 days after signing.

The law creates Article 21-A of the New York Labor law and is referred to as the Warehouse Worker Protection Act (WWPA). The WWPA tracks a similar law already enacted in California and purports to aim to protect warehouse workers from unreasonably demanding work quotas by requiring distribution centers to disclose work speed data to current and former employees to inform workers about their performance and their rights in the workplace.

The WWPA covers employers who employ 100 or more employees at a single warehouse distribution center or 500 or more employees at one or more warehouse distribution centers. Covered employees include non-exempt and non-administrative employees who work at a covered employer, and are subject to a quota. For purposes of the WWPA, a quota is defined as: (a) an employee assigned or required to perform: at a specified productivity speed; or a quantified number of tasks, or to handle or  produce a quantified amount of material, within a defined time period; or (b) an employee’s actions are categorized between time performing  tasks and not performing tasks, and the employee’s failure to complete a task performance standard or recommendation may have an adverse impact  on the employee’s continued employment or the conditions of such employment. Employers that do not have such requirements are not covered by the WWPA.

Covered employers must provide each employee, upon hire, or within 30 days of the effective date of this law, a written description of each quota and any potential adverse employment action relating to the same. Each time the quota changes the employer must provide an updated description within two business days. Anytime an employee is disciplined they must also be provided with the applicable quota.

The WWPA includes protections against quotas that would prevent compliance with meal or rest periods or use of the bathroom. It further states that paid and unpaid breaks cannot be counted as productive time for the purpose of the quota or monitoring system.

WWPA imposes recorded keeping requirements on employers to maintain and preserve copies of the quotas or work speed data, and further includes a mechanism for current and former employees to request copies of such records at no cost to the employee. The WWPA includes an anti-retaliation provision for employees that exercise their rights in “good faith” and creates a rebuttable presumption of retaliation if an employee is subject to an adverse employment action within 90 days of exercising the employee’s rights under the WWPA. Notably “clear and convincing” evidence is required to rebut the presumption. Employers that violate the WWPA may be subject to civil penalties. WWPA expressly authorizes the New York State Department of Labor commissioner and Attorney General to enforce against violations.

Many unanswered questions remain. Specifically, the WWPA does not expressly authorize a private cause of action by an employee. There is also no guidance on how the WWPA affects provisions in collective bargaining agreements within unionized workforces. There is also no definition for “good faith” under the anti-retaliation provision. These ambiguities will hopefully be clarified in forthcoming rules and regulations from the New York State Department of Labor.

Covered employers that impose quota or work speed data should carefully review the WWPA with employment counsel to ensure compliance. At a minimum, employers will need to create written descriptions of the quotas, forms for employees to acknowledge receipt of the same, amend record retention schedules, create a procedure for current and former employee to request records, and train managers on WWPA’s requirements. Moreover, an employer seeking to discipline or terminate an employee who may arguably be protected by the anti-retaliation provision should engage employment counsel for advice on how to minimize the risk of a complaint to the Commissioner of Labor or Attorney General’s office.

For more information or immediate guidance, contact:

• Christopher P. Maugans
• Joseph S. Brown
• Scott R. Green
• Caroline J. Berdzik
• Or another member of the Employment and Labor practice