Proposed Warehouse Worker Protection Act Could Have Major Implications for Businesses Employing Warehouse Workers

On May 2, 2024, Senators Edward J. Markey (D-Mass.), Tina Smith (D-Minn.), and Bob Casey (D-Pa.) introduced legislation they say will help protect warehouse workers from injury by placing limitations on, and requiring disclosure of, workplace quotas. Titled the “Warehouse Worker Protection Act,” the law could have major implications for businesses employing warehouse workers.

The Warehouse Worker Protection Act (the “Act”) would apply to most employers operating a warehouse distribution center that falls into the following North American Industry Classification Codes: warehousing and storage, merchant wholesalers of durable and nondurable goods, for electronic shopping and mail-order houses, and for couriers and express delivery services.

Under the proposed legislation, covered employers would be required to provide each covered warehouse employee with a written description of any quota to which the employee is subject. Such notice must include:

• The quantified number of tasks to be performed, materials to be produced, etc.
• Any potential discipline or adverse employment action that could result from the employee’s failure to meet the quota
• How performance targets/standards for the quota are calculated
• How the quota is monitored (including whether and how workplace surveillance technology is being used to monitor work speed data)
• A written description of, and training on, how the employee may file a complaint regarding a violation of the law

An employer seeking to change a quota or revise any workplace surveillance would be required to provide an updated written description of the change not less than two (2) business days before the change goes into effect. Employers who monitor work speed data would also be required to maintain both contemporaneous records of such data for each covered employee, and aggregated data for any similarly situated covered employees.

The Act further prohibits employers from taking adverse action against any employee for failure to meet a quota not disclosed in accordance with the law, as well as any adverse action based solely on ranking an employee’s performance in relation to the performance of another employee. With respect to adverse employment actions taken for failure to meet a quota that was adequately disclosed, the Act would require employers to provide a written explanation of how the employee failed to perform, including a comparison of the employee’s performance to the quota they failed to meet. If an adverse action is taken based on work speed data, the employer would also be required to provide such data in a format that a reasonable individual is able to understand.

Moreover, the Act would create a “Quota Task Force” in which labor organizations, worker advocacy organizations, and covered employees would collaborate to assist in enforcement of the law and train employees regarding their rights. The Quota Task Force could result in recommendations to a newly created “Fairness and Transparency Office” within the Wage and Hour Division of the Department and Labor — an office that, notably, would be given investigatory power.

The proposed legislation also imposes new break requirements. If enacted, covered employees would be entitled to at least one paid 15-minute break for every four hours worked.

The law further contemplates new standards for on-site medical treatment. If passed, the Act would result in OSHA issuing a new standard requiring, among other things, that each covered facility have a person adequately trained to render first aid. Employers would also be required to provide occupational medicine consultation services, including regular review of any work-related injury and on-site health services for treatment of such injury.

The Warehouse Worker Protection Act is in the earliest stages of the legislative process and it remains to be seen whether the Act will advance toward passage. Regardless, the Act serves as a reminder for employers with warehouse employees to review any quota and/or work speed policies they currently have in place, and to consult with their counsel to ensure that such policies are in full compliance with all applicable laws.