H.R. 4896 — Warehouse Worker Protection Act

This section establishes the Fairness and Transparency Office within the Wage and Hour Division of the Department of Labor (which administers the Fair Labor Standards Act's minimum wage, overtime, and related requirements) to implement the Warehouse Worker Protection Act. The President appoints the office's Director, who may hire staff directly into competitive service positions with pay up to level V of the Executive Schedule (bypassing specified civil service hiring and pay rules); use voluntary services; and have attorneys represent the office in litigation. The Director must create a Fairness and Transparency Advisory Board—composed of covered employers and employees (as defined in the Warehouse Worker Protection Act), worker protection experts, civil rights experts, health and safety experts, workplace technology experts, disability law experts, labor organization representatives, and worker advocacy representatives—with partisan balance, meeting at least twice annually and exempt from the Federal Advisory Committee Act; non-federal members receive set compensation and travel expenses. The Secretary of Labor, through the Director and Wage and Hour Administrator, may issue regulations, orders, and guidance to carry out the Warehouse Worker Protection Act, consulting other agencies such as OSHA, EEOC, NLRB, NMB, and MSPB.

This section establishes definitions for terms used in the Act, incorporating by reference the meanings of "commerce," "employ," "employee," and "employer" from section 3 of the Fair Labor Standards Act of 1938 (29 U.S.C. 203). It further defines (1) "covered facility" as a warehouse distribution center under specified NAICS codes (493 for warehousing and storage, 423 for merchant wholesalers of durable goods, 424 for nondurable goods, 454110 for electronic shopping and mail-order houses, or 492110 for couriers and express delivery services); (2) "covered employer" as an employer engaged in commerce or production of goods for commerce that employs more than 200 employees (including affiliates, as determined under 13 C.F.R. §121.103) at covered facilities; (3) "covered employee" as an employee subject to a quota while performing work at a covered facility; (4) "quota" as an express or implied performance standard or target—measured at the individual or group level within a defined time period (equal to or less than one day)—that assigns or expects performance of a quantified number of tasks, productivity speed, or material handling without excessive errors, or categorizes and measures time performing or not performing tasks; and (5) other terms including "adverse employment action" (e.g., termination, demotion, or burdensome schedule change materially disadvantaging a reasonable employee), "employee work speed data" (e.g., quantities, rates, or time measurements of quota-related performance), "aggregated work speed data" (anonymized summary data), "egregious misconduct" (deliberate or grossly negligent safety-endangering conduct), and "designated employee representative."

This section amends the Fair Labor Standards Act of 1938 (FLSA) to enforce violations of section 102 of the Warehouse Worker Protection Act (WWPA)—which regulates workplace quotas, injury reporting, and related requirements for covered warehouse employers, employees, and facilities—as follows: (1) in section 9, expands the applicability of witness attendance and document production powers under 15 USC 49 and 50 to hearings, investigations, or inspections (from hearings or investigations); (2) in section 11, adds investigative authority for the Secretary of Labor, acting through the Director of the Fairness and Transparency Division, including powers to enter covered facilities without delay at reasonable times, inspect during regular or other reasonable hours, and privately question covered employers or employees; requires permitting a labor organization representative, worker advocacy organization representative, or covered employee designee (requestable anonymously) to accompany inspectors at employee request; mandates opening an investigation with on-site inspection within 30 days of a covered employer having 40,000+ annual employee work hours and an injury rate 1.5 times the warehousing industry average (per Bureau of Labor Statistics data) or receiving 5+ credible complaints at one worksite or 10+ at multiple worksites in a year, with labor or worker organization representatives aiding outreach; and defines terms by reference to WWPA; (3) in section 15(a), adds a new paragraph (7) prohibiting WWPA violations; and (4) in section 16, incorporates WWPA violations into employee lawsuit remedies under subsection (b) with additional damages of $10,000 per violation of WWPA subsections (b), (d), (e), (f), or (g) or $25,000 per violation of subsections (c), (h), or (i); establishes civil penalties under subsection (e)(3) of up to $76,987 per violation or $769,870 for repeat or willful violations; and updates cross-references.

This section requires the Director of the Fairness and Transparency Office, the Administrator of the Wage and Hour Division of the Department of Labor, and the Assistant Secretary of Labor for Occupational Safety and Health to enter into a memorandum of understanding to promote efficient enforcement of relevant labor laws through information sharing, referral of complaints, cross-training of inspectors and investigators, and coordination of enforcement activities in states operating approved occupational safety and health plans under the Occupational Safety and Health Act (29 U.S.C. 667). The section further directs the Director to encourage, to the greatest extent possible, (1) referral of relevant complaints from and to the Equal Employment Opportunity Commission, National Institute for Occupational Safety and Health, Environmental Protection Agency, National Labor Relations Board, and other federal and state agencies conducting occupational health and safety inspections in covered facilities (as defined in sec. 102(a) of the Warehouse Worker Protection Act); and (2) cross-training of inspectors and investigators from those agencies for inspections related to working conditions in such facilities.

This section treats a violation of section 102 as a violation of a rule defining an unfair or deceptive act or practice under section 18(a)(1)(B) of the Federal Trade Commission Act (15 U.S.C. 57a(a)(1)(B)). It further authorizes the Federal Trade Commission (FTC) to enforce section 102 and regulations under this Act using all powers, jurisdiction, and duties under the FTC Act (15 U.S.C. 41 et seq.); subjects violators to FTC Act penalties while entitling them to privileges and immunities thereunder; preserves other FTC authorities; and permits the FTC to promulgate implementing rules under APA notice-and-comment procedures (5 U.S.C. §553).

This section amends the National Labor Relations Act (NLRA) to establish as an unfair labor practice under Section 8(a)(6) an employer's imposition of a quota on an employee that significantly discourages or prevents, or is intended to significantly discourage or prevent, the exercise of rights under Section 7 (i.e., rights to self-organization, collective bargaining, and protected concerted activities for mutual aid or protection). It further adds Section 8(h) creating a rebuttable presumption of a violation of Section 8(a)(6) if an employer imposes such a quota within 90 days of an employee exercising Section 7 rights. The section also adds a definition of "quota" in Section 2(15) to include performance standards or targets—measured at the individual or group level over defined time periods of one day or less—that assign quantified tasks, productivity speeds, material handling without specified errors, time categorizations between task performance and nonperformance, or increments of time spent on particular activities.

This section directs the National Labor Relations Board to (1) examine cases in which a quota—as defined in 29 U.S.C. 152—was used as a reason to deny a worker rights under the National Labor Relations Act; and (2) submit reports on such cases, as often as practicable, to the Senate Committee on Health, Education, Labor, and Pensions and the House Committee on Education and the Workforce.

This section directs the Secretary of Labor, pursuant to section 6 of the Occupational Safety and Health Act (29 U.S.C. 655), to publish in the Federal Register (1) a proposed standard for ergonomic program management to protect covered employees from occupational risk factors causing musculoskeletal disorders not later than three years after the date of enactment, requiring covered employers to provide hazard identification and job evaluations (with employee participation), hazard controls (e.g., equipment redesign, work pace reductions, job rotation), training on risk factors and symptoms, and medical management (e.g., early reporting and referral); and (2) a final standard based on the proposed standard not later than four years after enactment. (As background, such standards under the OSH Act set enforceable requirements to prevent workplace injuries, here targeting musculoskeletal disorders from repetitive or forceful tasks.)

This section directs the Secretary of Labor, pursuant to section 6 of the Occupational Safety and Health Act (29 U.S.C. 655), to publish in the Federal Register (1) a proposed standard within one year of enactment requiring covered employers to maintain at covered facilities a trained first aid provider who renders aid and refers injured or ill covered employees without delay to appropriate medical professionals, and to provide occupational medicine consultation services through a board-certified physician that include program reviews, injury reviews, onsite treatment, and referrals; and (2) a final standard within three years of enactment based on the proposed standard.

This section amends the Occupational Safety and Health Act of 1970 (OSHA) as follows: (1) adds new subsection 10(d) to require the correction period for serious, willful, or repeated violations to begin upon receipt of the citation (previously, under section 10(b), the period began after a final Commission order if contested in good faith), with contests not automatically staying the period but allowing employers to seek an expedited stay from the Occupational Safety and Health Review Commission upon demonstrating substantial likelihood of success and no adverse effect on employee health and safety (hearings within 15 days of motion, decisions within 15 days thereafter, objections within 5 days, and Commission review decisions within 10-30 days); (2) makes conforming changes to section 10(b) to except serious, willful, or repeated violations from the prior correction-period rule; and (3) revises section 17(d) to authorize civil penalties of up to $7,000 per day (subject to catch-up inflation adjustment within one year of enactment to the prior maximum and future adjustments under the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015) for each day of failure to correct such violations (absent a stay) or any other violation beyond the permitted period. (As background, OSHA serious violations involve substantial probability of death or serious physical harm; willful violations are intentional; and repeated violations recur at the same workplace; these changes aim to expedite abatement while providing limited stay options.)

This section provides a severability clause stating that if any provision of this Act (or an amendment made by this Act) or its application to any person, entity, government, or circumstance is held unconstitutional, the remainder of the Act (and its amendments) and the application of such provision to other persons, entities, governments, or circumstances shall not be affected.

This section provides that the Act (including amendments and regulations) does not supersede or preempt (1) state or local laws or ordinances requiring quota limitations for covered employees that are comparable to or greater than the Act's protections; or (2) more beneficial employment terms or conditions in collective bargaining agreements. The section further specifies that no action by the Director under the Act constitutes an exercise of statutory authority under section 4(b)(1) of the Occupational Safety and Health Act of 1970 (29 U.S.C. 653(b)(1)), which exempts from OSHA coverage working conditions regulated by other federal agencies. (Thus, OSHA standards continue to apply concurrently.)