Washington has joined the steadily lengthening list of states imposing restrictions on production quotas on employees working in warehouse distribution centers, an effort originally launched in California and New York State as a result of labor unions’ largely unsuccessful campaign to organize Amazon.
Attorneys Kathryn Barry, Sherry Talton and Peter Montine of the law firm of Jackson Lewis say the Washington law, which will go into effect on July 1, 2024, strongly resembles New York’s law which will become effective this July 19, and California’s statute, which went into effect last Jan. 1.
The Washington law covers all employers with at least 100 nonexempt employees at a single warehouse distribution center in Washington or at least 1,000 nonexempt employees at one or more warehouse distribution centers in located in the state.
To determine the employee threshold for coverage, those employed directly or indirectly, those employed through an agency, and all those employed by an employer’s affiliates are counted.
“Warehouse distribution center” is defined to include establishments engaging in activities falling under the following North American Industry Classification System (NAICS) codes:
- 493 for warehousing and storage, but not including 493130 for farm product warehousing and storage.
- 423 for merchant wholesalers, durable goods.
- 424 for merchant wholesalers, nondurable goods.
- 454110 for electronic shopping and mail-order houses.
The new law defines “quota” broadly as “a work performance standard, whether required or recommended, where an employee is assigned or required to perform at a specified productivity speed, or perform a quantified number of tasks, or to handle or produce a quantified amount of material, within a defined time period and under which the employee may suffer an adverse employment action if they fail to complete the performance standard.”
It also applies in situations where an employee’s actions are categorized between time performing tasks and not performing tasks, if the employee may suffer an adverse employment action if they fail to meet the performance standard.
The Jackson Lewis attorneys point out that this definition could include standardized “items per hour” quotas and more sophisticated algorithms or engineered labor standards to establish workplace productivity requirements.
Covered employers must provide new employees with a written description, in the employee’s preferred language, of all applicable quotas, along with the potential adverse employment actions if the quotas or production standards are not met. The employer also must list any associated incentives or bonus programs for employees that pertain to the quotas.
Employers also must provide employees with notice of changes to quotas, upon hire or within 30 days of the law’s effective date, or by July 31, 2024. Employees must be notified (verbally or in writing) of subsequent changes to quotas as soon as possible before being subject to the new quota, along with an updated written description of each quota applying to the employee within two business days of that change.
Any quotas or production standards created must include time for rest breaks, reasonable travel time to rest and meal break locations, time to do work subject to the quota, and time to use the bathroom (including reasonable travel). “Reasonable travel time” must take into account the architecture and geography of the facility, as well as the employee’s location.
The law also spells out that quotas must also allow time for employees to take “any actions necessary for the employee to exercise the employee’s right to a safe and healthful workplace.”
Employees do not need to meet quotas prohibited by these standards, and employers banned from taking adverse action against an employee for failing to do so.
Under the new law, employers who use quotas or monitor employee “work speed data” (information on an employee’s performance of a quota) must keep records of each employee’s work speed data and the aggregated work speed data for similar employees at the same warehouse distribution center for the duration of an employee’s employment.
Employees have the right to request, within strict deadlines and at no cost, quota-related information. This covers written descriptions of each relevant quota, past six months of personal work speed data, and past six months of aggregated work speed data for similar employees at the same warehouse distribution center.
Former employees also may request and receive this same information within three years of separation from employment.
When it comes to enforcement, the Washington Department of Labor & Industries (L&I) is assigned responsibility for enforcing the law’s antiretaliation and antidiscrimination provisions by investigating employees’ complaints as well as through initiating its own investigations. A first-time violation of the new law or any related rules can result in a civil penalty of $1,000.
L&I officials are charged with will creating a schedule of enhanced penalties for repeat violations, up to $10,000 per violation. In addition, employers found to have violated the law will be required to pay the employee one hour of pay for each day that had a rest or meal period violation. Further, the L&I can file a court action against an employer and if it prevails, it is entitled to attorney’s fees and costs.
However, the new law does not provide for a private right of action where an employee could hire a lawyer to bring a lawsuit against the employer.