New Chapter Amendment to the Warehouse Worker Protection Act

On March 3, 2023, Governor Hochul signed a chapter amendment to the Warehouse Worker Protection Act (“WWPA”). As previously reported in HSE’s 2022 year-end update, the WWPA’s purpose is to protect warehouse distribution center workers from certain quota practices. Violations of the WWPA may result in civil penalties by the Commissioner of Labor, or civil or criminal prosecution by the Attorney General. The recent chapter amendment enacts significant changes, most notably the effective date of the law was pushed from February 19, 2023 to June 19, 2023. The Commissioner of Labor is required to make any necessary regulations for the implementation of the law prior to that date, so we should expect to see regulatory changes shortly.

The chapter amendment also resulted in substantive changes to the law as follows:

Definitions and Application:

  • The definition of Employee was amended to exclude exempt employees and drivers/couriers to or from a warehouse distribution center.
  • The definition of Employer was amended to cover employers who (1) employ over 100 employees at a single warehouse distribution center or (2) employ over 1000 employees at one or more warehouse distribution centers within New York state. For the purpose of calculating this number, all employees of a controlled group of corporations must be counted.
  • A Quota is considered any work standard where an employee must perform at a specified productivity speed, perform a quantified number of tasks, handle/produce a quantified amount of material within a certain timeframe, or under which the employee may suffer an adverse employment action if they fail to complete the performance standard.
  • Farm product warehousing and storage is now excluded from the definition of Warehouse Distribution Center.

Notice and Recordkeeping requirements:

  • Employers are still required to provide employees with a written description of the quota, including “the quantified number of tasks to be performed or materials to be produced or handled, within the defined time period.” The description must also include any potential adverse employment actions for failing to meet the quota. Per the amendments, the written description must be provided in English and in the language identified by the employee as their primary language. It is unclear whether there will be any assistance from the Department of Labor in standard notices or forms in different languages.
  • Pursuant to the new effective date, written descriptions should be distributed to current employees by July 19, 2023. Post-effective date, new employees should receive a copy at time of hire. Employers must also provide employees a copy of an updated written description within 2 days of any change to the quota.
    • The strict recordkeeping requirements were largely deleted from the WWPA. Per the amendments, employers are now only required to maintain records for three years that are sufficient to ensure the employer can comply with requests for data from the Commissioner of Labor or from employees.
    • Former and current employees are still permitted to request records from their employer, if they believe either (a) they were disciplined as a result of failing to meet a quota or (b) the quota violated their right to a meal/rest period or use of bathroom facilities. In response to requests, employers must provide: (1) a written description of the quota; (2) data for the last 90 days of the employee’s own personal work speed data; and (3) 90 days of aggregate work speed data for similar employees at the same establishment. Employers now have 14 days (as opposed to 7) to respond.
  • The law still prohibits unlawful retaliation, and now creates a rebuttable presumption of unlawful retaliation if an adverse action occurs within 90 days of an employee (1) initiating a request for information about their quota or work speed data, or (2) making a complaint related to a quota violation, whether to the employer or to a governmental agency.

Harter Secrest & Emery’s Labor and Employment attorneys are here to answer any questions you may have regarding the WWPA. Please contact any Labor and Employment team member at 585.232.6500 or 716.853.1616.

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