Warehouse Worker Protection Act
The red suit is hot over this topic. So, I apologize if I get a little preachy. However, the U.S. Senate has recently proposed a new law, “The Warehouse Worker Protection Act.” The proposed law seeks to provide notice requirements and disciplinary limits on companies that use quotas to evaluate employee performance of certain workers. In addition to the warehouse and storage industries, the law would cover merchant wholesalers, electronic shopping and mail-order houses, and couriers and express delivery services. And if this law passes, with the passage of time other industries will likely be considered “covered” employers as well.
In addition to notice requirements about production expectations, the legislation would institute requirements around disciplining employees. In order to take disciplinary action against an employee for failing to meet productivity requirements, a company would have to provide the employee with “a written explanation … regarding the manner in which the employee failed to perform.”
The explanation would include a description of the productivity level and how the employee failed to meet that level in comparison to the productivity requirements. The proposed law would ban quotas that the authors say require workers to move at an unsafe pace or cut corners in their work in order to keep up with expectations.
The proposed law also directs the Occupational Safety and Health Administration (OSHA) to publish a proposed ergonomic program management standard not later than three years after the enactment of the legislation. This will likely add to the cost of doing business for covered companies. New York and California have already enacted similar laws. As such, if the proposed law fails at the federal level. It is likely it will be introduced in Massachusetts as we tend to follow the same employee legislation of the aforementioned two states.
In fact, one of the senators that introduced the legislation was our own, Ed Markey. Senator Ed Markey’s office put out the following statement in a press release: The legislation would prohibit dangerous quotas, including those that rely on constant intrusive surveillance, interfere with workers’ ability to use the bathroom and take guaranteed breaks, violate health and safety laws, or prevent workers from exercising their right to organize. The legislation also creates new transparency requirements for quota systems and directs the Occupational Safety and Health Administration (OSHA) to create an ergonomic management standard for warehouse workers.”
Additionally, the proposed law calls for the creation of yet another regulatory agency. The “Fairness and Transparency Office” will be a subagency of the Department of Labor(DOL). The office would monitor covered workplaces that measure employee metrics and would be able to inspect workplaces and privately question employees. Further, employers will have to let union organizers accompany these inspectors, allowing the subagency to select union representatives to conduct outreach to workers about the investigation.
In my opinion, this proposed law is overkill and overreaching. Overkill because these protections already exist for employees. If the job is too difficult for an employee, perhaps that employee should get a different job. Further, if an employee gets injured on the job, there are workers compensation laws, tort laws, and OSHA regulations. The DOL is already tasked with enforcing employee protections; and then there is the Fair Labor Standard Act (FLSA) which governs wage and hour issues, including employee breaks; and the National Labor Relations Act (NLRA) that protects employees and as interpreted by the National Labor Relations Board (NLRB) provides ample and ever- expanding rights to employees and unions. In fact, this sort of regulation is better served by having a meeting of the minds between workforce and company via collective bargaining. These parties are closer to the action and would be better suited to come to a reasonable agreement as to what constitutes “fairness” in the workplace.
The proposed law is overreaching because it seeks to limit a company’s operations based on information gleaned from non-industry experts, with a measuring stick of “fairness.” That is agency action gone too far. The individual business should be determining production and operational standards according to their operational goals and respective industry standards.
Further, the legislators should not be seeking to extend the DOL reach and increasing the cost of the agency with an overreaching agency arm under the guise of “fairness and transparency.” First, fairness for whom? Not the businesses who provide the jobs and pay the taxes that keep these agencies in business. Next, as mentioned above, the agency action will be redundant and yet must be funded by taxpayers. Do we not have enough to spend taxpayer money on? Further, this legislation and subagency creation, will likely only serve to disincentivize the workforce (bonuses based on production is assuredly to be frowned upon and labeled “unfair”); and to drive up the costs of goods by slowing down production, adding more administrative red tape for those in charge of compliance at the company (and possibly the addition of human capital that will not contribute to revenue generation), and by inevitably adding the legal costs of defending governmental sanctions and employment related lawsuits. The public already believes the costs of goods are too high. Legislators should consider the actual harm this legislation will cause instead of seeking to implement “fair” legislation based upon a hypothetical and theoretical notion that there may be potential harm to an employee that may be asked to meet certain production quotas. This is unnecessary oversight and a disrespectful intrusion into a company’s ability to conduct business operations. This legislation also serves to increase the erroneous public sentiment that corporations are bad, and capitalism is a bad word. Business makes the world go round. These same companies create jobs in the first place. Thereby helping to put food on the table and clothes on backs for families. Do these legislators want to keep businesses in the USA? If so, perhaps they should not incentivize them to move their companies outside the USA.
What can you do? Call your Senator’s office. Call it a bunch. Tell them to vote against this proposed law. If that does not work and this law is implemented, the DOL will issue guidance that your labor and employment attorney can help you navigate.
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