HB2547ham003 103RD GENERAL ASSEMBLY

Rep. Kevin John Olickal

Filed: 3/21/2023

10300HB2547ham003 LRB103 30799 RPS 59628 a

AMENDMENT TO HOUSE BILL 2547

AMENDMENT NO. ______. Amend House Bill 2547 by replacing everything after the enacting clause with the following:

"Section 1. Short title. This Act may be cited as the Warehouse Worker Protection Act.

Section 5. Definitions. As used in this Act:

"Aggregated work speed data" means a compilation of employee work speed data for multiple employees, in summary form, assembled in full or in another form such that the data cannot be identified with any individual.

"Controlled group of corporations" has the meaning given to that term under Section 1563 of the Internal Revenue Code, 26 U.S.C. 1563, except that 50% shall be substituted for 80% where 80% is specified in that definition.

"Defined time period" means any unit of time measurement equal to or less than the duration of an employee's shift, including hours, minutes, seconds, and any fraction thereof.

"Designated employee representative" means any employee representative, including, but not limited to, an authorized employee representative who has a collective bargaining relationship with the employer.

"Director" means the Director of Labor.

"Employee" means a nonadministrative employee who is not exempt from the overtime and minimum wage requirements of the federal Fair Labor Standards Act of 1938, as amended, and who works at a warehouse distribution center and is subject to a quota as defined in this Section. "Employee" does not include a driver or courier to or from a warehouse distribution center.

"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. "Employee work speed data" does not include itemized wage statements or data that does not relate to the performance of a quota, except for any content of those records that includes employee work speed data.

"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, employs or exercises control over the wages, hours, or working conditions of 100 or more employees at a single warehouse distribution center in the State or 1,000 or more employees at one or more warehouse distribution centers in the State. For the purposes of this definition, all employees of a controlled group of corporations 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.

"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.

"Quota" means a work performance standard under which:

(1) 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 and under which the employee may suffer an adverse employment action if the employee fails to complete or meet the performance standard; or

(2) categorizes and measures an employee's actions between time performing tasks and not performing tasks, and the employee's failure to complete or meet a task performance standard may lead to an adverse employment action.

"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:

(1) 493 for Warehousing and Storage, but does not include 493130 for Farm Product Warehousing and Storage;

(2) 423 for Merchant Wholesalers, Durable Goods;

(3) 424 for Merchant Wholesalers, Nondurable Goods, but does not include 424510 for Grain and Field Bean Merchant Wholesalers, 424520 for Livestock Merchant Wholesalers, and 424590 for Other Farm Product Raw Material Wholesalers;

(4) 454110 for Electronic Shopping and Mail-Order Houses; or

(5) 492110 for Couriers and Express Delivery Services.

Section 10. Disclosure of quotas. Each employer shall provide to each employee, upon hire or within 30 days after the effective date of this Act, whichever is later, 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. Each time the quota changes thereafter, the employer shall provide an updated written description of each quota to which the employee is subject within 2 business days of the quota change. If an employer takes an adverse employment action against an employee based on a quota, the employee has a right to request, and the employer shall provide, a written explanation regarding the manner in which the employee failed to perform, including the applicable quota and comparison of the employee's work performance in relation to that quota. If an employee requests a written description of the quotas to which the employee was subject and a copy of the employee's own personal work speed data pursuant to this Section, the employer shall comply with this request as soon as practicable, but no later than 3 calendar days after the date of the request.

Section 15. Protection from quotas. 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 Section 10.

Section 20. Time on task. 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.

Section 25. Recordkeeping. Each employer shall establish, maintain, and preserve for 3 years contemporaneous, true, and accurate records to ensure compliance with employee and Director requests for data. Nothing in this Section shall require an employer to keep such records if such employer does not use quotas or monitor work speed data as a performance standard that leads to an adverse employment action. An employer is not obligated to produce data that does not constitute employee work speed data.

Section 30. Employee's right to request records.

(a) A current employee has the right to request a written description of each quota to which the employee is subject. If a current or former employee believes that the current or former employee has received an adverse employment action as the result of failing to meet a quota, or that meeting a quota caused a violation of the employee's right to a meal or rest period or use of bathroom facilities, the current or former employee has the right to request, and the employer shall provide, a written description of each quota to which the employee is subject, a copy of the most recent 90 days of the employee's own personal work speed data, and a copy of the aggregated work speed data for similar employees at the same establishment for the same time period.

(b) Requested records under this Section shall be provided at no cost to the current or former employee.

(c) Nothing in this Section shall require an employer to use quotas or monitor work speed data. An employer that does not monitor this data has no obligation to provide it.

(d) The rights afforded under this Section are independent of any other right afforded to an employee or former employee under any State or federal law, including, but not limited to, the Personnel Records Review Act, to access documents maintained by an employer.

Section 35. Unlawful retaliation. For purposes of this Act, there shall be a rebuttable presumption of unlawful retaliation if an employer takes any adverse employment action against an employee within 90 days of the employee doing either of the following:

(1) Initiating the employee's first request in a calendar year for information about a quota or personal work speed data pursuant to Section 30 of this Act.

(2) Making a complaint related to a quota alleging any violation of Sections 10, 15, or 20 of this Act, inclusive, to the Director, the Department, or the employer.

Section 40. Notice to employees. Every employer covered by this Act shall post and keep posted, in conspicuous places on the premises of the employer where notices to employees are customarily posted, a notice, to be prepared or approved by the Director of Labor, regarding employees' rights under this Act, including what constitutes a permissible quota and employees' right to request quota and work speed data information, and making a complaint to various State authorities regarding a violation of an employee's quota rights under this Act.

Section 45. Enforcement. The Department of Labor shall adopt rules to implement and enforce this Act. The Director shall be authorized to enforce this Act and to assess damages payable to the employee and civil penalties.

Section 50. Workplace inspections. If a particular work site or employer that uses quotas as a performance standard to determine adverse employment actions and is subject to this Act is found to have an annual employee injury rate of at least 1.5 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 determine whether an investigation of violations pursuant to this Act, if relevant to the Director's authority, is appropriate.

Section 55. Private right of action. A current or former employee or his or her designated employee representative may bring an action for injunctive relief to obtain compliance with Sections 10, 15, 20, and 30 and may, upon prevailing in the action, recover costs and reasonable attorney's fees in such action. 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 any adverse action that resulted from its enforcement by the employer.

Section 60. Attorney General; powers. The Attorney General, pursuant to the authority under Section 6.3 of the Attorney General Act, may initiate or intervene in a civil action in the name of the People of the State in any circuit court to obtain all appropriate relief for violations established under this Act.

Section 97. Severability. The provisions of this Act are severable under Section 1.31 of the Statute on Statutes.

Section 99. Effective date. This Act takes effect January 1, 2024.".