The New York Warehouse Worker Protection Act limits employers’ ability to monitor warehouse employees’ productivity using quotas. Covered employers must notify employees in writing of all quotas against which they’re measured and the potential consequences of not meeting them. This new law temporarily took effect on February 19, 2023. As a result of chapter amendments, its implementation will now be delayed until June 19, 2023, with significant changes.

Covered Workplaces

Employers are subject to the Warehouse Worker Protection Act if they employ either:

• 100 or more employees at a single warehouse distribution center; or
• 1,000 or more employees at one or more warehouse distribution centers in the State.

“Warehouse distribution center” is defined by reference to applicable North American Industry Classification System (NAICS) codes. Establishments falling under the following NAICS codes are covered:

• 493 – Warehousing and Storage (excluding Farm Product Warehousing and Storage)
• 423 – Merchant Wholesalers, Durable Goods
• 424 – Merchant Wholesalers, Nondurable Goods
• 454110 – Electronic Shopping and Mail-Order Houses
• 492110 – Couriers and Express Delivery Services

Employees exempt from New York minimum wage and overtime requirements are not counted in determining coverage. Even if subject to quotas, the provisions of the Warehouse Worker Protection Act don’t apply to them. Drivers and couriers are also excluded from coverage.

“Quotas”

The Warehouse Worker Protection Act defines “quota” as “a work standard” which:

• 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; or under which the employee may suffer an adverse employment action if they fail to complete the performance standard; or
• 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.

Notice of Quotas

By July 19, 2023 (or, if later, upon hire), covered employers must provide each employee a written description of each quota to which the employee is subject. The description must include:

• quantified number of tasks to be performed or materials to be produced or handled,
• specified time period, and
• any potential adverse employment actions that could result from failure to meet the quota.

If the employer changes any quota, it must provide an updated written description of each quota within two business days of the change.

The written description must be provided in English and the employee’s primary language.

Whenever an employer disciplines an employee for not meeting a quota, it must provide the employee with the applicable quota.

Additional Provisions

The Warehouse Worker Protection Act includes additional parameters related to employee quotas. These restrictions generally prohibit employers from implementing quotas that prevent compliance with meal or rest periods or bathroom use, including reasonable travel time to and from bathroom facilities.

Current employees have the right to request a copy of the written description of their quotas. If a current or former employee believes they have been disciplined for failing to meet a quota or that meeting a quota caused a violation of their right to a meal, rest period, or use of the bathroom, they have the right to request and receive all of the following:

• written descriptions of each quota to which the employee is subject;
• the most recent 90 days of the employee’s own work speed data; and
• the aggregate work speed data for similar employees at the same establishment for the same time period.

Employers must also maintain quota records for three years sufficient to ensure compliance with requests for data.

Companies must provide the requested information “as soon as practicable, but no later than fourteen calendar days from the date of the request.” They may not retaliate against employees for requesting quota information or making a complaint alleging a violation of the Act.

Note that the Warehouse Worker Protection Act confirms that it does not require any employer to use quotas or to create/preserve data if it doesn’t monitor employee performance based on quotas.

Warehouse Employer Action Required

The Warehouse Worker Protection Act could apply to employers across numerous industries, including transportation, logistics, and a broad array of wholesale businesses. If your warehouse operations are large enough to qualify, you must plan to either provide the requisite quota information to employees or decide not to apply productivity quotas. Warehouses that continue to use quotas must be particularly careful to identify all possible consequences to an employee who doesn’t meet their quota and include them in the required written description. Not listing a form of discipline may prevent the employer from implementing it later.

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