[Congressional Bills 118th Congress] [From the U.S. Government Publishing Office] [S. 5208 Introduced in Senate (IS)] <DOC> 118th CONGRESS 2d Session S. 5208 To establish protections for warehouse workers, and for other purposes. _______________________________________________________________________ IN THE SENATE OF THE UNITED STATES September 25, 2024 Mr. Markey (for himself, Mr. Casey, Ms. Smith, Mr. Hawley, Mr. Brown, Mr. Sanders, Mr. Padilla, Mrs. Gillibrand, Mr. Blumenthal, Mr. Welch, Ms. Warren, and Ms. Butler) introduced the following bill; which was read twice and referred to the Committee on Health, Education, Labor, and Pensions _______________________________________________________________________ A BILL To establish protections for warehouse workers, and for other purposes. Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, SECTION 1. SHORT TITLE. This Act may be cited as the ``Warehouse Worker Protection Act''. SEC. 2. TABLE OF CONTENTS. The table of contents for this Act is as follows: Sec. 1. Short title. Sec. 2. Table of contents. TITLE I--WAREHOUSE WORKER PROTECTIONS Sec. 101. Warehouse worker protections. Sec. 102. Referral of complaints. Sec. 103. Enforcement by the FTC. TITLE II--NATIONAL LABOR RELATIONS ACT Sec. 201. Amendments to National Labor Relations Act. Sec. 202. National Labor Relations Board report. TITLE III--OSHA STANDARDS Sec. 301. Standard protecting covered employees from occupational risk factors causing musculoskeletal disorders. Sec. 302. Standard for protecting covered employees from delays in medical treatment referrals following injuries or illnesses. Sec. 303. Correction of serious, willful, or repeated violations pending contest and procedures for a stay. Sec. 304. Definitions. TITLE IV--MISCELLANEOUS PROVISIONS Sec. 401. Severability. Sec. 402. Preemption. Sec. 403. Authorization of appropriations. TITLE I--WAREHOUSE WORKER PROTECTIONS SEC. 101. WAREHOUSE WORKER PROTECTIONS. The Fair Labor Standards Act of 1938 is amended-- (1) by inserting after section 4 (29 U.S.C. 204) the following: ``SEC. 5. ESTABLISHMENT OF FAIRNESS AND TRANSPARENCY OFFICE. ``(a) In General.--There is established in the Wage and Hour Division of the Department of Labor the Fairness and Transparency Office. ``(b) Director of the Fairness and Transparency Office.--The President shall appoint a Director of the Fairness and Transparency Office to head the Fairness and Transparency Office. ``(c) Employees and Advisory Boards of the Office.-- ``(1) In general.--The Director-- ``(A) may select, appoint, and employ, without regard to the provisions of sections 3309 through 3318 of title 5, United States Code, individuals directly to positions in the competitive service, as defined in section 2102 of such title, to carry out the duties of the Director under this Act; and ``(B) may fix the compensation of the individuals described in subparagraph (A) without regard to chapter 51 and subchapter III of chapter 53 of title 5, United States Code, relating to classification of positions and General Schedule pay rates, except that the rate of pay for such individuals may not exceed the rate payable for level V of the Executive Schedule under section 5316 of that title. ``(2) Fairness and transparency advisory board.-- ``(A) In general.--The Director shall establish a Fairness and Transparency Advisory Board to advise and consult on the exercise of the functions of the Director under this Act. ``(B) Composition.--The Fairness and Transparency Advisory Board established under subparagraph (A) shall be composed of-- ``(i) as the Director determines appropriate, covered employers and covered employees or representatives of covered employers and covered employees; and ``(ii) at least one of each of the following: ``(I) Worker protection experts. ``(II) Civil rights experts. ``(III) Health and safety experts. ``(IV) Workplace technology experts. ``(V) Disability law experts. ``(VI) Representatives of labor organizations. ``(VII) Representatives of worker advocacy organizations. ``(C) Appointments.--The Director shall-- ``(i) appoint members to the advisory board established under subparagraph (A); and ``(ii) ensure a partisan balance in the membership of the advisory board. ``(D) Meetings.--The advisory board established under subparagraph (A) shall meet-- ``(i) at the call of the Director; and ``(ii) not less than 2 times annually. ``(E) Compensation and travel expenses.--A member of the Fairness and Transparency Advisory Board established under subparagraph (A) who is not an officer or employee of the Federal Government shall-- ``(i) be entitled to receive compensation at a rate fixed by the Director while attending meetings of the advisory board, including travel time; and ``(ii) receive travel expenses, including per diem in lieu of subsistence, in accordance with applicable provisions under subchapter I of chapter 57 of title 5, United States Code. ``(F) Exemption from the federal advisory committee act.--The Fairness and Transparency Advisory Board established under subparagraph (A) shall be exempt from chapter 10 of title 5, United States Code (commonly known as the `Federal Advisory Committee Act'). ``(3) Use of voluntary services.--The Director may, as may from time to time be needed, use any voluntary or uncompensated services. ``(4) Attorneys.--Attorneys appointed under this subsection or the Solicitor of Labor may appear for and represent the Director in any litigation. ``(d) Rulemaking.-- ``(1) In general.--The Secretary, acting through the Director and the Administrator of the Wage and Hour Office, may issue orders and guidance or promulgate regulations as may be necessary or appropriate to enable the Secretary to carry out the purposes and objectives of this section, and to prevent evasions thereof. ``(2) Consultation.--In issuing orders and guidance or promulgating regulations under this subsection, the Secretary, acting through the Director and the Administrator of the Wage and Hour Office, may consult with the Occupational Safety and Health Administration and Federal agencies that have jurisdiction over labor and employment issues, including the Equal Employment Opportunity Commission, the National Labor Relations Board, the National Mediation Board, and the Merit Systems Protection Board.''; (2) by inserting after section 7 (29 U.S.C. 207) the following: ``SEC. 8. WAREHOUSE WORKER PROTECTIONS. ``(a) Definitions.--In this section: ``(1) Adverse employment action.--The term `adverse employment action', with respect to a covered employee, means a change by the covered employer of the covered employee in the compensation, terms, conditions, or privileges of the job of the covered employee that, from the perspective of a reasonable person, puts the covered employee in a materially adverse position than prior to the change, including termination, a reduction in benefits, disciplinary action, demotion, promotion, transfer, imposition of a work schedule more burdensome to the covered employee, reduction of scheduled hours, adjustment in ability for promotion, or other modifications to compensation, terms, conditions, or privileges of employment. ``(2) Aggregated work speed data.--The term `aggregated work speed data' means employee work speed data that a covered employer has combined, or collected together, in a summary or other form so that the employee work speed data cannot, at any point, be identified or linked with any specific covered employee. ``(3) Covered facility.--The term `covered facility' means any warehouse distribution center described in the North American Industry Classification System code-- ``(A) 493, for warehousing and storage; ``(B) 423, for merchant wholesalers, durable goods; ``(C) 424, for merchant wholesalers, nondurable goods; ``(D) 454110, for electronic shopping and mail- order houses; or ``(E) 492110, for couriers and express delivery services. ``(4) Covered employee.--The term `covered employee' means an employee who-- ``(A) is employed by an employer for the performance of work at a covered facility; and ``(B) is subject to a quota while performing work at such covered facility. ``(5) Covered employer.-- ``(A) In general.--The term `covered employer' means an employer that-- ``(i) is engaged in commerce, in the production of goods for commerce, or in an enterprise engaged in commerce or in the production of goods for commerce, including such an employer that is a contractor, subcontractor, temporary service firm, staffing agency, independent contractor, employee leasing entity, or similar entity; ``(ii) employs a covered employee for the performance of work at a covered facility; and ``(iii) employs more than a total of 200 employees (including on a full- or part-time basis) for the performance of work at all covered facilities owned or operated by the employer. ``(B) Rule of construction.--For purposes of determining the number of employees under subparagraph (A)(iii), the total number of employees employed for the performance of work as described in such subparagraph shall include all employees of any affiliate of the employer (as determined in accordance with section 121.103 of title 13, Code of Federal Regulations, as in effect on the date of enactment of the Warehouse Worker Protection Act). ``(6) Defined time period.--The term `defined time period' means any unit of time measurement equal to or less than one day, including hours, minutes, and seconds and any fraction thereof. ``(7) Designated employee representative.--The term `designated employee representative' means any representative designated by a covered employee, including an employee representative that has a collective bargaining relationship with the covered employer of the covered employee. ``(8) Director.--The term `Director' means the Director of the Fairness and Transparency Office established by section 5. ``(9) Egregious misconduct.--The term `egregious misconduct', with respect to a covered employee, means deliberate or grossly negligent conduct that endangers the safety or well-being of the covered employee, co-workers of the covered employer, customers, or other persons, including discrimination against or harassment of co-workers, customers, or other persons. ``(10) Employee work speed data.--The term `employee work speed data' means information a covered employer collects, stores, analyzes, or interprets relating to the performance of work by a covered employee of the covered employer for a quota, including information with respect to the-- ``(A) quantities of tasks performed by the covered employee; ``(B) quantities of items or materials handled or produced by the covered employee; ``(C) rates or speeds of tasks performed by the covered employee; ``(D) measurements or metrics of covered employee performance in relation to a quota; or ``(E) time categorized with respect to the covered employee as performing tasks or not performing tasks. ``(11) Quota.--The term `quota' means an express or implied performance standard or performance target, including such a standard or target used to rank or compare an employee in relation to the performance of another employee or in relation to the past performance of the employee, under which-- ``(A)(i) an employee is actually or effectively assigned, required, or expected within a defined time period (with or without any reasonable accommodation provided under Federal, State, or local law) to-- ``(I) perform-- ``(aa) a quantified number of tasks; or ``(bb) at a specified productivity speed; or ``(II) handle or produce a quantified amount of material without a certain number of errors or defects; and ``(ii) such assignment, requirement, or expectation is measured at the individual or group level for such defined time period; ``(B) actions by an employee are categorized and measured between time performing tasks and not performing tasks within a defined time period; or ``(C) increments of time of a defined time period during which an employee is or is not doing a particular activity are measured, recorded, or tallied. ``(12) Similarly situated covered employee.--The term `similarly situated covered employee', with respect to a covered employee, means another covered employee who holds the same job or responsibilities as the covered employee. ``(13) Tribal government.--The term `Tribal government' means the recognized governing body of an Indian Tribe. ``(14) Workplace surveillance.--The term `workplace surveillance' means any employer surveillance (on- or off-duty) with respect to an employee, including the detection, monitoring, interception, collection, exploitation, preservation, protection, transmission, or retention of data concerning activities or communications with respect to the employee, including through the use of a product or service marketed, or that can be used, for such purposes, such as a computer, telephone, wire, radio, camera, sensor, electromagnetic, photoelectronic, handheld or wearable device, or photo-optical system. ``(15) Work station.--The term `work station' means the area of a covered facility within which a covered employee is assigned to perform tasks for the longest duration of time during a day. ``(b) Communication With Covered Employees Regarding Quotas and Workplace Surveillance.-- ``(1) In general.--On the later of the date a covered employee is hired by a covered employer or 180 days after the date of enactment of this section, each covered employer shall provide to each covered employee of the covered employer-- ``(A) a written description of each quota to which the covered employee is subject, including-- ``(i) as applicable, the quantified number of tasks to be performed or of materials to be produced or handled, or other performance measure, within the defined time period, for the quota; ``(ii) any potential discipline or adverse employment action that could result from failure to meet the quota; ``(iii) how performance targets or performance standards for the quota are calculated; ``(iv) whether there is any incentive or bonus program associated with meeting or exceeding the quota and, if applicable, how the incentive or bonus program operates; and ``(v) how the quota is monitored, including a description of-- ``(I) what employee work speed data are being collected; ``(II) how the employee work speed data are being collected, including a description of any workplace surveillance technology used on the covered employee by the covered employer; ``(III) where and when the employee work speed data are being collected; ``