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Regulatory Update: NY Warehouse Worker Law Aimed at Amazon

Feb. 6, 2023
Amazon already changed work standards and practices.

New York State has joined the parade of federal and state government officials who are taking sides against Amazon with the unions who are trying to organize the company’s warehouse workers, but it is questionable about what the real impact a new state law will have in the end on the e-commerce giant.

The new law, which goes into effect on Feb. 19, is aimed at preventing warehouse workers from being subjected by management to work quotas that are so demanding that they are considered to be risks to the safety and health of the employees.

Called the Warehouse Worker Protection Act (WWPA), the new law establishes requirements for distribution centers (DCs) to disclose work speed data to current and former employees and to inform workers about their performance and rights in the workplace.

Labor unions hailed the law’s enactment. “Amazon overloads its workers to pump up its profits,” said Sean M. O’Brien, Teamsters’ general president. “While we are pleased by this bill’s signing, the fight continues in states across the country to make sure this white-collar crime syndicate is held responsible for its behavior.”

Tom Erickson, president of Teamsters Local 120 and director of the Teamsters Warehouse Division, added, “Enacting this legislation will end Amazon’s shady practice of managing its New York warehouse workers by secret algorithm, but more still needs to be done. Going forward, lawmakers everywhere need to understand the damage this company is doing to their constituents and our communities.”

Although unions have been trying hard to organize Amazon DCs for years now, they have managed to make only little progress after expending a large amount of effort and money on the campaign. One reason is that the company largely blunted the threat by raising wages and adopting sweeping safety measures in 2021.

Recognizing that about 40% of its workers’ injuries are related to musculoskeletal disorders (MSDs), at that time Amazon developed algorithms to automate staffing schedules, rotating employees around jobs using different muscle-tendon groups to decrease repetitive motion and help protect employees from MSD risks.

In the process, the company said it invested more than $300 million in various safety projects, including $66 million devoted to creating technology that will help prevent collisions of forklifts and other types of industrial vehicles. Amazon said it also initiated improved safety training and created wellness and mindfulness programs for employees.

The federal Occupational Safety and Health Administration (OSHA) apparently was unimpressed and recently filed charges against Amazon at three of its Florida, Illinois and New York state, and is pursuing investigations at three fulfillment centers in New York, Colorado and Idaho. The charges specifically involve what the agency terms a high rate of MSD injuries.

OSHA Assistant Secretary of Labor Doug Parker said, “Each of these inspections found work processes that were designed for speed but not safety, and they resulted in serious worker injuries. Our hope is that the findings of our investigations inspire Amazon and other warehouses to make the safety and health of their workers a core value.”

Amazon currently faces a total of $60,269 in proposed penalties for these violations. It also was cited in December for 14 recordkeeping violations as part of the same investigation.

Targeting Work Quotas

New York’s WWPA is similar to a California law enacted last year that is intended to protect warehouse workers from unreasonably demanding work quotas by requiring DCs to disclose work speed data to all current and former employees to inform workers about how their performance is measured and evaluated, and help them learn about their rights in the workplace.

The California law, which went into effect at the beginning of 2022,  does not permit a work quota that prevents compliance with meal or rest periods required by state law, the use of bathroom facilities (including reasonable travel time to and from bathrooms), as well as preventing compliance with health and safety standards.

The New York law covers employers who have 100 or more employees working at a single warehouse or DC and those with 500 or more employees at one or more warehouse DCs. Workers who are covered by the law include non-exempt and non-administrative employees who work at a covered employer and are subject to a quota.

The WWPA defines a quota very specifically, according to attorneys of the law firm of Goldberg Segalla. It says a quota is a work standard where an employee is 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.

The law says a quota also occurs when 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 are required to provide each employee with a written description of the quota being imposed and any potential adverse employment action relating to it. In addition, each time the quota changes, the employer must provide an updated description within two business days. Any time an employee is disciplined they also must be provided with information about the applicable quota.

In addition, the WWPA protects workers from adverse employment actions because of a failure to meet undisclosed speed quotas or quotas that do not allow for proper breaks. It also prohibits employers from retaliating against employees exercising their rights under the law, point out Mark Goldstein, Alexandra Manfredi and Alexandra Irizarry of the Reed Smith law firm.

If employees exercise their rights in “good faith,” any subsequent actions taken against them by the employer are presumed to be an “adverse action against an employee,” if it is taken within 90 days of the employee’s engaging or attempting to engage in activities that are deemed to be protected by the law, like engaging in organizing efforts.

The law also requires that employers applying these kinds of quotas maintain records of each employee’s own personal work speed data; the aggregated work speed data for similar employees at the same establishment; and the written descriptions of the quota such employee was provided.

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