[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;
``