S. 2613 — Warehouse Worker Protection Act

This section establishes the Fairness and Transparency Office in the Wage and Hour Division of the Department of Labor (which administers the Fair Labor Standards Act), to be headed by a Director appointed by the President. The Director may appoint employees directly to competitive service positions without regard to civil service exam requirements (5 U.S.C. §§3309-3318), set their compensation without regard to General Schedule rates up to level V of the Executive Schedule (i.e., $183,500 annually as of 2024), use voluntary services, and have attorneys represent the office in litigation. The section further requires the Director to establish 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—to meet at least twice annually and advise on the Director's functions; non-federal board members receive compensation set by the Director and travel expenses, and the board is exempt from the Federal Advisory Committee Act. Finally, the section authorizes the Secretary of Labor, acting through the Director and Wage and Hour Administrator, to issue orders, guidance, and regulations to implement the Warehouse Worker Protection Act (i.e., preventing evasions of its worker protections, such as quotas), in consultation with specified agencies including OSHA, EEOC, NLRB, NMB, and MSPB.

This section defines terms for warehouse worker protections, including (1) “covered facility” (NAICS codes 493 for warehousing and storage, 423 for durable goods wholesalers, 424 for nondurable goods wholesalers, 454110 for electronic shopping and mail-order houses, or 492110 for couriers and express delivery services); (2) “covered employee” (an employee subject to a quota while working at a covered facility); (3) “covered employer” (a commerce-engaged employer, including affiliates, with more than 200 total employees at all covered facilities); (4) “quota” (an express or implied performance standard measured at the individual or group level within a defined time period of one day or less, such as task quantities, speeds, or time categorizations); and (5) “employee work speed data” (information on covered employee quota performance, such as task rates, speeds, or time measurements). Certain terms (e.g., “commerce,” “employ,” “employee,” and “employer”) have the meanings given in section 3 of the Fair Labor Standards Act of 1938 (29 U.S.C. 203).

This section amends the Fair Labor Standards Act of 1938 (FLSA) to enforce section 102 of the Warehouse Worker Protection Act (WWPA), which establishes workplace protections for covered warehouse employees (i.e., non-exempt employees of covered employers performing manual tasks at covered facilities). Specifically, it (1) expands the Secretary of Labor's authority under FLSA section 9 (29 U.S.C. 209) to include inspections in addition to hearings and investigations; (2) in FLSA section 11 (29 U.S.C. 211), directs the Secretary to investigate WWPA violations with powers to enter covered facilities without delay, inspect during reasonable times, and privately question personnel, permits covered employees to have a labor organization representative, worker advocacy organization, or designee accompany inspectors, mandates an investigation (including on-site inspection) within 30 days for covered employers with 40,000+ annual employee work hours and injury rates at least 1.5 times the warehousing industry average or receiving 5+ credible complaints at one worksite or 10+ at multiple worksites during a one-year period, and requires selecting labor organization or worker advocacy representatives for worker outreach during such investigations; (3) adds WWPA violations as prohibited acts under FLSA section 15(a)(7) (29 U.S.C. 215(a)(7)); and (4) in FLSA section 16 (29 U.S.C. 216), authorizes private actions under subsection (b) for WWPA violations with damages for direct or foreseeable pecuniary harms plus $10,000 per violation of WWPA subsections (b), (d), (e), (f), or (g) or $25,000 per violation of subsections (c), (h), or (i), and establishes civil penalties under subsection (e)(3) of up to $76,987 per violation or $769,870 for repeat or willful violations. (Thus, these changes integrate WWPA enforcement into FLSA's framework, mandating proactive investigations of high-risk warehouse employers and enhancing remedies for violations.)

This section directs the Director of the Fairness and Transparency Office, the Administrator of the Wage and Hour Office 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—including through information sharing, complaint referrals, and inspector cross-training—with coordination encouraged in states operating under approved plans pursuant to section 18 of the Occupational Safety and Health Act of 1970 (29 U.S.C. 667). It further requires the Director, to the greatest extent possible, (1) to encourage 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 section 102(a) of the Warehouse Worker Protection Act); and (2) to promote cross-training of inspectors and investigators from those agencies for working conditions in such facilities.

This section establishes Federal Trade Commission (FTC) enforcement of section 102 by treating violations thereof as violations of a rule defining unfair or deceptive acts or practices under section 18(a)(1)(B) of the Federal Trade Commission Act (15 U.S.C. 57a(a)(1)(B)). It further directs the FTC to enforce section 102 and related regulations using the same manner, means, jurisdiction, powers, and duties as under the Federal Trade Commission Act (15 U.S.C. 41 et seq.); subjects violators to applicable penalties and entitles them to applicable privileges and immunities thereunder; preserves all other FTC authorities; and authorizes the FTC to promulgate implementing rules via notice-and-comment procedures under 5 U.S.C. 553.

This section amends the National Labor Relations Act (NLRA) to (1) establish as an unfair labor practice under Section 8(a)(6) an employer's imposition of a quota that significantly discourages or prevents, or is intended to significantly discourage or prevent, an employee from exercising rights under Section 7 (i.e., rights to self-organization, form or join labor organizations, bargain collectively, or engage in other concerted activities for mutual aid or protection); (2) create under new Section 8(h) a rebuttable presumption of a violation of Section 8(a)(6) if an employer imposes a quota on an employee within 90 days after the employee exercises Section 7 rights; and (3) define "quota" under new Section 2(15) as a performance standard or target—including those assigning quantified tasks, productivity speeds, material production with error limits, time categorizations between task performance and non-performance, or time increments for specific activities—measured at the individual or group level over a defined time period of one day or less (e.g., hours, minutes, seconds).

This section directs the National Labor Relations Board to (1) examine cases in which a quota (as defined in section 2 of the National Labor Relations Act) was used as a reason to deny a worker rights under that 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 of 1970 (29 U.S.C. 655), to publish in the Federal Register (1) a proposed standard for ergonomic program management—not later than three years after enactment of this Act—for covered employers with respect to covered employees, including requirements for hazard identification and ergonomic job evaluations with employee participation, hazard controls based on the hierarchy of controls (e.g., equipment redesign, work pace reductions, job rotation), training on risk factors and symptoms of musculoskeletal disorders, and medical management (e.g., early reporting, first aid, evaluation and referral); and (2) a final standard based on the proposed standard not later than four years after enactment.

This section directs the Secretary of Labor, pursuant to section 6 of the Occupational Safety and Health Act of 1970 (29 U.S.C. 655), to publish in the Federal Register a proposed occupational safety and health standard within one year of enactment requiring covered employers to (1) maintain at covered facilities a trained person readily available to provide first aid to injured or ill covered employees and refer them without delay to an appropriate medical professional for further treatment if needed and (2) provide covered employees with occupational medicine consultation services through a board-certified occupational medicine physician, including regular program reviews, injury/illness reviews, onsite treatment, and referrals to local providers. The section further directs publication of a final standard based on the proposed standard within three years of enactment.

This section amends section 10 of the Occupational Safety and Health Act of 1970 (29 U.S.C. 659)—which governs Occupational Safety and Health Review Commission (OSHRC) procedures for employer contests of OSHA citations—by adding subsection (d) to (1) start the correction period for serious, willful, or repeated violations upon citation receipt; (2) provide that a notice of contest does not stay the correction period for such violations; and (3) authorize employers to seek an OSHRC stay upon demonstrating substantial likelihood of success on contesting the violation's existence or abatement time and that a stay will not harm employee health or safety, with expedited procedures including an administrative law judge hearing within 15 days of the motion (extendable at employer request), a decision within 15 days after the hearing, objections within 5 days, and Commission review or final order within 10-30 days. The section makes conforming amendments to (1) section 10(b), excluding serious, willful, or repeated violations from the general rule that contests stay the correction period until final order; and (2) section 17(d) (29 U.S.C. 666(d)), replacing the prior failure-to-abate provision—which tied the correction period to final order for contested citations—with penalties of up to $7,000 per day ($7,000 to match the pre-inflation amount) for uncorrected serious, willful, or repeated violations (absent a stay) or other violations. Finally, the section directs the Secretary of Labor to make a catch-up inflation adjustment under the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015 (28 U.S.C. 2461 note) to section 17(d)'s maximum penalties within one year of enactment to align with amounts effective immediately before enactment, with future inflation adjustments to continue unaffected.

This section provides a severability clause, stating that if any provision of this Act (or its amendments) is held unconstitutional as applied to any person, entity, government, or circumstance, the remainder of the Act (including its amendments) and the application of the provision to others remain unaffected.

This section provides that nothing in this Act or its regulations preempts or supersedes (1) state or local laws or ordinances requiring quota limitations for covered employees that are comparable to or greater than those in this Act; or (2) more beneficial employment terms or conditions in collective bargaining agreements. The section further specifies that no action by the Director under this Act constitutes an exercise of statutory authority under section 4(b)(1) of the Occupational Safety and Health Act (29 U.S.C. 653(b)(1)), which exempts from OSHA working conditions regulated by other federal agencies. (Thus, OSHA retains jurisdiction over such working conditions.)