[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;
                                    ``