2023 -- S 0661

========

LC002440

========

     STATE OF RHODE ISLAND

IN GENERAL ASSEMBLY

JANUARY SESSION, A.D. 2023

____________

A N   A C T

RELATING TO LABOR AND LABOR RELATIONS -- WAREHOUSE WORKER

PROTECTION ACT

     Introduced By: Senators Ciccone, F. Lombardi, Britto, DiPalma, Tikoian, Burke, and Bell

     Date Introduced: March 07, 2023

     Referred To: Senate Labor

     It is enacted by the General Assembly as follows:

     SECTION 1. Title 28 of the General Laws entitled "LABOR AND LABOR RELATIONS"

is hereby amended by adding thereto the following chapter:

CHAPTER 60

WAREHOUSE WORKER PROTECTION ACT

     28-60-1. Short title.

     This chapter shall be known and may be cited as the "Warehouse Worker Protection Act".

     28-60-2. Definitions.

     As used in this chapter:

     (1) "Aggregated data" means information that an employer has combined or collected

together in summary or other form such that the data cannot be identified with any individual.

     (2) "Defined time period" means any unit of time measurement equal to or less than the

duration of an employee’s shift, and includes hours, minutes, and seconds and any fraction thereof.

     (3) "Designated employee representative" means any employee representative, including,

but not limited to, an authorized employee representative that has a collective bargaining

relationship with the employer.

     (4) "Employee" means a nonexempt employee who works at a warehouse distribution

center and is subject to a quota as defined in this section.

     (5) "Employee work speed data" means information an employer collects, stores, analyzes,

or interprets relating to an individual employee’s performance of a quota, including, but not limited

to, quantities of tasks performed, quantities of items or materials handled or produced, rates or

speeds of tasks performed, measurements or metrics of employee performance in relation to a

quota, and time categorized as performing tasks or not performing tasks.

     (6)(i) "Employer" means a person who directly or indirectly, or through an agent or any

other person, including through the services of a third-party employer, temporary services, or

staffing agency, independent contractor, or any similar entity, at any time in the prior twelve (12)

months, employs or exercises control over the wages, hours, or working conditions of one hundred

(100) or more employees at a single warehouse distribution center or five hundred (500) or more

employees at one or more warehouse distribution centers in the state.

     (ii) For the purposes of this subsection:

     (A) All employees employed directly or indirectly, or through an agent or any other person,

as described in subsection (6)(i) of this section, as well as any employee employed by a member of

a controlled group of corporations of which the employer is a member, shall be counted in

determining the number of employees employed at a single warehouse distribution center or at one

or more warehouse distribution centers in the state; and

     (B) All agents or other persons, as described in subsection (6)(i) of this section, and all

members of a controlled group of corporations of which the employer is a member, shall be deemed

to be employers and shall be jointly and severally responsible for compliance with this chapter. For

purposes of this subsection, the term "controlled group of corporations" shall be defined as provided

under Section 1563 of the Internal Revenue Code, 26 U.S.C. section 1563, except that fifty percent

(50%) shall be substituted for eighty percent (80%) where eighty percent (80%) is specified in that

definition.

     (7) "Person" means an individual, corporation, partnership, limited partnership, limited

liability partnership, limited liability company, business trust, estate, trust, association, joint

venture, agency, instrumentality, or any other legal or commercial entity, whether domestic or

foreign.

     (8) "Quota" means a work standard which:

     (i) An employee is assigned or required to perform:

     (A) 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

LC002440 - Page 2 of 7

conditions of such employment.

     (9) "Warehouse distribution center" means an establishment as defined by any of the

following North American industry classification system ("NAICS") codes, however such

establishment is denominated:

     (i) Four hundred ninety-three (493) for warehousing and storage;

     (ii) Four hundred twenty-three (423) for merchant wholesalers, durable goods;

     (iii) Four hundred twenty-four (424) for merchant wholesalers, nondurable goods;

     (iv) Four hundred fifty-four thousand one hundred ten (454,110) for electronic shopping

and mail-order houses; or

     (v) Four hundred ninety-two thousand one hundred ten (492,110) for couriers and express

delivery services.

     28-60-3. Disclosure of quotas.

     (a) Each employer shall provide to each employee, upon hire, or within thirty (30) days of

the effective date of this chapter, a written description of each quota to which the employee is

subject, including the quantified number of tasks to be performed or materials to be produced or

handled, within the defined time period, and any potential adverse employment action that could

result from failure to meet the quota.

     (b) Each time the quota changes thereafter, the employer shall provide an updated written

description of each quota to which the employee is subject within two (2) business days of such

quota change.

     (c) Each time an employer takes an adverse employment action against an employee, the

employer shall provide that employee with the applicable quota for the employee.

     28-60-4. Protection from quotas.

     (a) An employee shall not be required to meet a quota that prevents compliance with meal

or rest periods or use of bathroom facilities, including reasonable travel time to and from bathroom

facilities. An employer shall not take adverse employment action against an employee for failure

to meet a quota that does not allow a worker to comply with meal and rest periods or for failure to

meet a quota that has not been disclosed to the employee pursuant to § 28-60-3.

     (b) Consistent with existing law, paid and unpaid breaks shall not be considered productive

time for the purpose of any quota or monitoring system unless the employee is required to remain

on call.

     28-60-5. Recordkeeping.

     (a) Each employer shall establish, maintain, and preserve contemporaneous, true, and

accurate records of the following:

LC002440 - Page 3 of 7

     (1) Each employee's own personal work speed data;

     (2) The aggregated work speed data for similar employees at the same establishment; and

     (3) The written descriptions of the quota such employee was provided pursuant to § 28-60-

3.

     (b) Such records shall be maintained and preserved throughout the duration of each

employee's period of employment and made available to the director of the department of labor and

training upon request.

     (c) Subsequent to any employee's separation from the employer, such records relating to

the six (6) month period prior to the date of the employee's separation from the employer shall be

preserved for a period of time not less than three (3) years subsequent to the date of such employee's

separation and made available to the director upon request.

     (d) Nothing in this section shall require an employer to keep such records if such employer

does not use quotas as defined in this chapter or monitor work speed data.

     28-60-6. Right to request.

     (a) A current employee has the right to request a written description of each quota to which

the employee is subject, a copy of the employee's own personal work speed data, and a copy of the

prior six (6) months of aggregated work speed data for similar employees at the same establishment.

     (b) A former employee has the right to request, within three (3) years subsequent to the

date of their separation from the employer, a written description of the quota to which they were

subject as of the date of their separation, a copy of the employee's own personal work speed data

for the six (6) months prior to their date of separation, and a copy of aggregated work speed data

for similar employees at the same establishment for the six (6) months prior to their date of

separation.

     (c) Such requested records pursuant to this section shall be provided at no cost to the current

or former employee.

     (d) The employer shall provide such requested records pursuant to this section as soon as

practicable; provided that, requested written descriptions of the quota shall be provided no later

than two (2) business days following the date of the receipt of the request and requested personal

work speed data and aggregated work speed data shall be provided no later than seven (7) business

days following the date of the receipt of the request.

     (e) Nothing in this section shall require an employer to use quotas as defined in this chapter

or monitor work speed data. An employer that does not monitor this data has no obligation to

provide it.

     28-60-7. Unlawful retaliation.

LC002440 - Page 4 of 7

     (a) No person, including, but not limited to, an employer, their agent, or person acting as

or on behalf of a hiring entity, or the officer or agent of any entity, business, corporation,

partnership, or limited liability company, shall discharge or in any way retaliate, discriminate or

take adverse action against any person for exercising any rights conferred under this chapter, or for

being perceived as exercising rights conferred by this chapter, including, but not limited to:

     (1) Initiating a request for information about a quota or personal work speed data pursuant

to § 28-60-6.

     (2) Making a complaint related to a quota alleging any violation of §§ 28-60-3, 28-60-4

and 28-60-6 to the director, any other local, state, or federal governmental agency or official, or the

employer.

     (b) An employee need not explicitly refer to this chapter or the rights enumerated in this

chapter to be protected from an adverse action. Protections of this section shall apply to former

employees and to employees who mistakenly, but in good faith, allege violations of this chapter.

     (c) If a person takes adverse action against an employee within ninety (90) days of the

employee's engaging or attempting to engage in activities protected by this chapter, such conduct

shall raise a rebuttable presumption that the action is an adverse action in violation of this chapter.

Such presumption may be rebutted by clear and convincing evidence that:

     (1) The action was taken for other permissible reasons; and

     (2) The engaging or attempting to engage in activities protected by this chapter was not a

motivating factor in the adverse action.

     28-60-8. Requirements for basing discipline on quota compliance.

     If the employer wishes to discipline an employee for work under quota, the employer shall

provide a written explanation to the employee regarding the manner in which the employee failed

to perform, including the applicable quota and comparison of work performance to that standard.

     28-60-9. Posting of notices in the workplace related to quotas.

     Employers subject to this chapter shall post a notice in the workplace regarding workers'

rights under the chapter, including what constitutes a permissible quota, as well as the employees'

right to request quota and speed date information, and to make a complaint to various state

authorities regarding violation of an employee's quota rights.

     28-60-10. Enforcement.

     The director of the department of labor and training shall adopt rules and regulations

implementing the provisions of this chapter. The director shall be authorized to enforce the

provisions of this chapter and to assess civil penalties in a manner consistent with state law.

     28-60-11. Workplace inspections.

LC002440 - Page 5 of 7

     If a particular worksite or employer is found to have an annual employee injury rate of at

least one and one-half (1½) times as high as the warehousing industry's average annual injury rate

as published by the Bureau of Labor Statistics' most recent Fatal and Non-fatal Occupational

Injuries and Illnesses data, the director shall conduct an investigation of violations pursuant to this

chapter.

     28-60-12. Private right of action.

     (a) A current or former employee or their representative may bring an action for injunctive

relief to obtain compliance with this chapter and may, upon prevailing in the action, recover costs

and reasonable attorneys' fees in such action.

     (b) In any action involving a quota that prevented the compliance with applicable

regulations on workplace safety and health or meal or rest break requirements, the injunctive relief

shall be limited to suspension of the quota and restitution and injunctive relief to address any

retaliation or other adverse action taken by the employer in relation to the complaint or its

enforcement.

     (c) In any action involving a retaliation in violation of this chapter, in addition to the relief

authorized in this section, a prevailing current or former employee or their representative shall be

awarded damages equal to the greater of ten thousand dollars ($10,000) or three (3) times the actual

damages, including, but not limited to, unpaid wages and benefits.

     28-60-13. Enforcement by attorney general.

     The attorney general, either upon their own complaint or the complaint of any person acting

for themselves or the general public, has the authority to prosecute actions, either civil or criminal,

for violations of this chapter, or to enforce the provisions of this chapter, independently and without

specific direction of the director.

     28-60-14. Severability.

     If any provision of this chapter, or any application of any provision of this chapter, is held

to be invalid, that shall not affect the validity or effectiveness of any other provision of this chapter,

or of any other application of any provision of this chapter, which can be given effect without that

provision or application; and to that end, the provisions and applications of this chapter are

severable.

     SECTION 2. This act shall take effect on September 1, 2023.

========

LC002440

========

LC002440 - Page 6 of 7

EXPLANATION

BY THE LEGISLATIVE COUNCIL

OF

A N   A C T

RELATING TO LABOR AND LABOR RELATIONS -- WAREHOUSE WORKER

PROTECTION ACT

***

     This act would require employers to provide each employee, defined as a nonexempt

employee who works at a warehouse distribution center, upon hire or within thirty (30) days of the

effective date of this chapter, with a written description of each quota to which the employee is

subject, including the quantified number of tasks to be performed or materials to be produced or

handled, within the defined time period and any potential adverse employment action that could

result from failure to meet the quota. This act also would provide each employee with protections

against quotas and remedies for violations of those protections, including, but not limited to,

unlawful retaliation or dismissal.

     This act would take effect on September 1, 2023.

========

LC002440

========

LC002440 - Page 7 of 7