Joining New York and California, Washington became the third state to place restrictions on warehouse worker productivity quotas, adding to the growing patchwork of state regulation of the workplace. The law requires employers to build bathroom breaks and travel time into productivity quotas, as well as sufficient time to complete required job tasks.
Who is covered? The law, signed last week by Governor Jay Inslee (D), covers employers with 100 or more employees at a single warehouse location as well as those with 1,000 or more employees at different warehouse locations across the state.
What is required? The law requires covered employers to build sufficient meal, rest, bathroom, and travel time into performance quotas or metrics. In other words, employers are prohibited from enacting and enforcing performance quotas that effectively prevent employees from the above activities in order to reach the quotas. The law also contains extensive recordkeeping and notice requirements, requiring employers to:
- Keep records of each employee’s “own personal work speed data” as well as aggregated data of the same for “similar employees at the same warehouse.”
- Maintain records for the duration of the employment period and, upon separation, retain records of the six-month period before separation for at least three years from the date of separation.
- Provide written descriptions of any quotas to which the employee is subject at the start of their employment, and upon request during employment within two days of the request. Such notices must include any potential adverse actions that could result from a failure to meet each quota, and any incentives associated with meeting each quota.
- Notify employees, verbally or in writing, of any changes to quotas to which they are subject “as soon as possible.”
- Provide records to state enforcement authorities upon request.
Increased focus on worker monitoring: Workplace monitoring, particularly when conducted through AI tools, has increasingly become a target of federal and state regulators. As reported separately, the White House Office of Science and Technology Policy issued a public Request for Information “to learn more about the automated tools used by employers to surveil, monitor, evaluate, and manage workers,” with regulations presumably to follow on the basis of their findings. Meanwhile, several federal agencies are similarly considering regulation of workplace surveillance, particularly where it involves the use of AI.
Outlook: Workplace surveillance appears to be yet another front in the growing patchwork of state and local laws governing the workplace, particularly in the absence of corresponding federal action. However, while Congress may continue to be inactive in this area – at least to the extent of actually passing legislation – federal agencies and the White House are beginning to identify potential areas for regulating workplace monitoring. Employers should be on the lookout for increased movement in this space in the future and audit their workplace monitoring protocols accordingly.
Published on: May 12, 2023
Authors: Gregory Hoff
Topics: Employee Relations, Employment Law, Jobs, Skills and Training