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Legislation Document
SPONSOR:
Sen. Poore & Rep. Morrison
Sen. Lockman; Rep. Osienski
DELAWARE STATE SENATE
153rd GENERAL ASSEMBLY
SENATE BILL NO. 194
AN ACT TO AMEND TITLE 19 OF THE DELAWARE CODE RELATING TO WAREHOUSE WORKER PROTECTIONS.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF DELAWARE:
Section 1. Amend Title 19 of the Delaware Code by making deletions as shown by strike through and insertions as shown by underline as follows and by redesignating accordingly:
Chapter 39. Warehouse Worker Protection Act.
§ 3901. Declaration of purpose.
The General Assembly finds that the rapid growth of just-in-time logistics and same-day or next-day consumer package delivery, and advances in technology used for tracking employee productivity, have led to a rise in the number of warehouse and distribution center workers who are subject to quantified work quotas. Warehouse and distribution center employees who work under those quotas are expected to complete a quantified number of tasks within specific time periods, often measured down to the minute or second, and face adverse employment action, including suspension or termination, if they fail to do so. Those quotas generally do not allow for workers to comply with safety guidelines or to recover from strenuous activity during productive work time, leaving warehouse and distribution center employees who work under them at high risk of injury and illness. The quotas under which warehouse and distribution center employees regularly work also affect their compensation. Warehouse and distribution center employees who work under a quota, however, do not receive the full benefit of minimum wages if their quota is increased to make up for the direct or indirect effect of a minimum-wage increase. Quotas in occupations that are already physically demanding not only increase accidents, but they also incentivize unsafe work. The workforce in warehouse and logistics who depend upon these jobs to provide for their families and often see no alternative but to prioritize quota compliance over their own safety.
§ 3902. Definitions.
As used in this chapter:
(1) “Defined time period” means any unit of time measurement equal to or less than the duration of an employee’s shift, and includes hours, minutes, and seconds and any fraction thereof.
(2) “Department” means the Department of Labor as defined in § 101 of this title.
(3) “Employee” means a nonexempt employee who works at a warehouse distribution center.
(4) “Employee work speed data” means information an employer collects, stores, analyzes, or interprets relating to an individual employee’s performance of a quota that may include 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.
(5) “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 service, or staffing agency or similar entity, employs or exercises control over the wages, hours, or working conditions of 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.
(6) “Quota” means a work standard under which an employee is assigned or required to perform at a specified productivity speed, or perform 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 they fail to complete the performance standard.
(7) “Secretary” or “Secretary of Labor” means as defined in § 101 of this title.
(8) a. “Warehouse distribution center” means an establishment as defined by any of the following North American Industry Classification System (NAICS) Codes, however that establishment is denominated:
1. 493110 for General Warehousing and Storage.
2. 423 for Merchant Wholesalers, Durable Goods.
3. 424 for Merchant Wholesalers, Nondurable Goods.
4. 454110 for Electronic Shopping and Mail-Order Houses.
b. “Warehouse distribution center” does not include NAICS Code 493130, Farm Product Warehousing and Storage.
§ 3903. Notice of quotas.
Each employer shall provide to each employee, upon hire, or within 30 days of the effective date of this chapter, 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.
§ 3904. Prohibitions.
An employee cannot be required to meet a quota that prevents compliance with meal or rest periods, use of bathroom facilities, including reasonable travel time to and from bathroom facilities, or occupational health and safety laws of this title or Department standards. An employer may 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 occupational health and safety laws of this title or Department standards, or for failure to meet a quota that has not been disclosed to the employee subject to subsection § 3903 of this title.
§ 3905. Right to request a written description.
(a) If a current or former employee believes that meeting a quota caused a violation of their right to a meal or rest period or required them to violate any occupational health and safety laws of this title or Department standards, they have the right to request, and the employer shall provide, a written description of each quota to which the employee is subject and a copy of the most recent 90 days of the employee’s own personal work speed data.
(b) If a former employee requests a written description of the quotas to which they were subject and a copy of their own personal work speed data under subsection (a) of this section, the employer shall provide 90 days of the former employee’s quotas and personal work speed data for the 90 days prior to the date of the employee’s separation from the employer.
(c) A former employee is limited to one request pursuant to this section.
(d) An employer that receives a written or oral request for information under subsection (a) of this section shall comply with the request as soon as practicable, but no later than 21 calendar days from the date of the request.
(e) Nothing in this section requires an employer to use quotas or monitor work speed data. An employer that does not monitor this data has no obligation to provide it.
§ 3906. Rebuttable presumption of retaliation.
For purposes of this chapter, there is a rebuttable presumption of unlawful retaliation if an employer in any manner discriminates, retaliates, or takes any adverse action against any 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 § 3903 of this title.
(2) Making a complaint related to a quota alleging any violation of §§ 3903 through 3906 of this title, inclusive, to the Secretary, the Department, other local or state governmental agency, or the employer.
§ 3907.
Records.
Upon receiving a complaint regarding a violation of this chapter, a state or local enforcement entity may request or subpoena the records of warehouse distribution center quotas and employee work speed data.
§ 3908.
Authority of the Secretary of Labor.
(a) The Secretary shall do all of the following:
(1) The Secretary shall enforce this chapter by engaging in coordinated and strategic enforcement efforts with the divisions within the Department and the Department of Health and Social Services. The Secretary shall have access to data from the department including employer-reported injury data and enforcement actions in warehouses, and the identity of uninsured employers, and employers who are committing workers’ compensation fraud, wage theft, or other information relevant to the Secretary’s authority.
(2) The Secretary shall strategically collaborate with stakeholders to educate workers and employers about their rights and obligations under this chapter, respectively, in order to increase compliance.
(3) The Secretary shall report to the General Assembly by January 1, 2028, the number of claims filed with the Secretary under this chapter, data on warehouse production quotas in warehouses in which the Division of Workers’ Compensation has indicated that annual employee injury rates are above the industry average, and the number of investigations undertaken and enforcement actions initiated, per employer.
(b) If a particular worksite or employer is found to have an annual employee injury rate of at least 1.5 times higher than the warehousing industry’s average annual injury rate, the Secretary shall determine whether an investigation of violations pursuant to this chapter, if relevant to the Secretary’s authority, is appropriate. The Secretary may coordinate enforcement with other divisions within the Department, as needed.
(c) The Secretary shall have the authority to adopt regulations relating to the procedures for an employee to make a complaint alleging a violation of this chapter.
(d)
The
Secretary and the Department is empowered, as hereinafter provided, to prevent any person from engaging in any unlawful employment practice as set forth in this chapter. In connection with the performance of its duties, the Department may do all of the following:
(1) Investigate employment practices by permitting the Department to enter any place of employment at reasonable times; inspect and copy records or documents in the possession of the employer, the employment agency, or labor organization; administer oaths, certify to official acts, take and cause to be taken depositions of witnesses; issue subpoenas compelling the attendance and testimony of witnesses and the production of papers, books, accounts, payrolls, documents, and records.
(2) Make, revise, or rescind such rules or regulations necessary or appropriate to administer or enforce this chapter in accordance with the provisions of § 10161(b) of Title 29.
(3) Commence civil actions in Superior Court for violations of this chapter, any published regulations or for civil penalties provided herein.
(e) In any successful action brought by the Secretary to enforce this chapter, the court shall grant injunctive relief in order to obtain compliance with the chapter and shall award costs and reasonable attorney’s fee.
§ 3909.
Action for injunctive relief.
A current or former employee may bring an action for injunctive relief to obtain compliance with §§ 3903 through 3906 of this title, inclusive, and may, upon prevailing in the action, recover costs and reasonable attorney’s fees in that action. In any action involving a quota that prevented the compliance with regulations promulgated by the Department and the Department of Health and Social Services, the injunctive relief must be limited to suspension of the quota and any adverse action that resulted from its enforcement.
§ 3910.
Authority of the Attorney General.
This chapter does not limit the authority of the Attorney General, either upon their own complaint or the complaint of any person acting for themselves or the general public, to prosecute actions, either civil or criminal, for violations of this chapter, or to enforce the provisions thereof independently and without specific direction of the Secretary or the Department.
§ 3911.
Preemption not applicable.
This chapter does not preempt any city, county, or city and county ordinance that provides equal or greater protection to employees who are covered by this chapter.
§ 3912. Severability.
The provisions of this chapter are severable. If any provision of this chapter or its application is held invalid, that invalidity does not affect other provisions or applications that can be given effect without the invalid provision or application.
SYNOPSIS
This Act establishes worker protections for employees who work in a warehouse distribution center. This Act requires employers to provide each employee with a written description of any quota the employee may be subject to during their scope of employment. This Act prohibits an employer from requiring an employee to meet a quota that would prevent the employee from being able to have meal and rest periods as required by Department of Labor standards. Adverse action may not be taken against an employee by an employer for failure to meet a quota that does not allow for meal and rest periods.
The Act permits an employee to request a written description when they believe a quota prohibited them from receiving appropriate meal or rest periods. Any discriminatory or retaliatory action taken against an employee within 90 days of the employee making a written request or complaint creates a rebuttable presumption of retaliation by the employer. The Act establishes the Secretary of Labor’s authority to enforce and pass regulations to effectuate this Act, including remedies and relief available to the Department of Labor.
Author: Senator Poore