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REFERENCE TITLE: collective bargaining; warehouse employees; quotas |
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State of Arizona Senate Fifty-sixth Legislature Second Regular Session 2024
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SB 1449 |
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Introduced by Senator Bravo
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An Act
amending title 23, chapter 8, Arizona Revised Statutes, by adding article 9; relating to labor.
(TEXT OF BILL BEGINS ON NEXT PAGE)
Be it enacted by the Legislature of the State of Arizona:
Section 1. Title 23, chapter 8, Arizona Revised Statutes, is amended by adding article 9, to read:
ARTICLE 9. WAREHOUSE EMPLOYEES
23-1451. Definitions
In this article, unless the context otherwise requires:
1. "Aggregated data" means information that an employer has combined or collected in summary or another form for which the data cannot be identified by a specific individual.
2. "Commission" means the industrial commission of Arizona.
3. "Defined time period":
(a) Means any unit of time measurement equal to or less than the duration of an employee's shift.
(b) Includes hours, minutes, seconds and fractions.
4. "Designated employee's representative" means any employee representative, including an authorized employee representative that has a collective bargaining relationship with the employer.
5. "Employee" means a nonexempt employee who works at a warehouse distribution center and is subject to a quota as defined in this section.
6. "Employee's 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:
(a) Quantities of tasks performed.
(b) Quantities of items or materials handled or produced.
(c) Rates or speeds of tasks performed.
(d) Measurements or metrics of employee performance in relation to a quota.
(e) Time categorized as performing tasks or not performing tasks.
7. "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 services, a staffing agency, an independent contractor or any similar entity from the effective date of this section for the past twelve months, employs, retains or exercises control over the wages, hours or working conditions of one hundred or more employees at a single warehouse distribution center or five hundred or more employees at one or more warehouse distribution centers in this state.
8. "person" means a current or former employee, including the current or former employee's agent or employer's agent or person acting on behalf of a hiring entity, or the officer or agent of any entity, business, corporation, partnership or limited liability company.
9. "Quota" means a performance standard or performance target under which any of the following applies:
(a) an employee is assigned or required, within a defined time period, to perform a quantified number of tasks or at a specified productivity speed or to handle or produce a quantified amount of material without a certain number of errors or defects, as measured at the individual or group level within a defined time period.
(b) an employee's actions are categorized and measured between time performing tasks and time not performing tasks within a day.
(c) an employee's performance is ranked in relation to the performance of other employees.
10. "Warehouse distribution center" means an establishment as defined by any of the following North American Industry Classification System codes, however the following establishments are denominated:
(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.
(e) 492110 for couriers and express delivery services.
23-1452. Employees; quotas; written description; rules
A. on hire or within thirty days of the effective date of this section, an employer shall provide each employee with a written description of all of the following:
1. Any quota to which the employee is subject, including the quantified number of tasks to be performed or materials to be produced or handled within a defined time period.
2. Any potential adverse employment action that could result from failure to meet a quota.
3. Any incentive or bonus program that is associated with meeting or exceeding a quota.
B. If there is a change in quota that is different from the most recent quota provided to an employee, the employer shall:
1. promptly Notify the employee verbally and in writing before the employee is subject to the new quota.
2. Provide the employee with an updated written description of each quota within two business days after the change in quota.
C. If an employer takes adverse employment action against an employee for failure to meet a quota, the employer shall provide the employee with the applicable quota and the employee's work speed data that was the basis for the adverse action.
D. The written description must be described in plain language using understandable terms in the employee's preferred language.
E. The commission may adopt rules relating to the written description provided in subsection D of this section that includes the format, use of language and accessibility requirements.
F. An employee shall not be required to meet a quota that:
1. Has not been previously disclosed.
2. Prevents compliance with any meal break, rest period or use of bathroom laws.
3. Measures total output over an increment of time that is shorter than one day.
4. Ranks employees in relation to the performance of other employees.
G. The time period considered in a quota, including the time designated as productive time or time on task must include:
1. Time for rest breaks and reasonable time to travel to designated locations for rest breaks.
2. Reasonable travel time to on-site designated meal break locations. Meal breaks are not considered time on task or productive time unless the employee is required by the employer to remain on duty at a prescribed worksite or to remain on call.
3. Time to perform any activity required by an employer.
4. Time to use the bathroom, including reasonable travel time.
5. Time to take any actions necessary for the employee to exercise the employee's right to a safe and healthful WORKPLACE, including time to access tools or safety EQUIPMENT necessary to perform the employee's duties.
H. An employee is not required To meet a quota that measures and categorizes increments of time for an employee that:
1. Is performing measurable tasks and time not performing measurable tasks.
2. Is on annual leave.
3. Is on sick leave.
23-1453. Employment records; retention period
A. An employer shall establish, maintain and preserve contemporaneous true and accurate records of the following:
1. Each employee's work speed data.
2. The aggregated data on work speed for similar employees at the same establishment.
3. The written descriptions of any quota that was provided to an employee pursuant to section 23-1452.
B. The records shall be maintained and preserved throughout the duration of each employee's period of employment and made available to any state or governmental agency or the current or former employee on request.
C. An employer is required to retain the EMPLOYMENT records for the previous six months before the date of the employee's separation from employment. The employer shall retain the records for a minimum of three years.
D. This section does not require an employer to maintain RECORDS if the employer does not use a quota system or monitor work speed data.
23-1454. Joint labor management safety committee meetings; rules; definition
A. Every employer with more than TWENTY-FIVE employees shall establish and administer a joint labor management safety committee.
B. Every employer with fewer than TWENTY-FIVE employees shall establish and administer a joint labor management safety committee if either of the following applies:
1. The employer has a lost workday incidence rate in the top ten percent of all rates for employers in the same industry.
2. The workers' compensation premium classification assigned to the greatest portion of the payroll for the employer has a pure premium rate in the top twenty-five percent of the premium rates for all classes as reported by the Workers' Compensation rating Association.
C. A joint labor management safety committee meeting must be held regularly unless otherwise provided in a collective bargaining agreement.
D. Joint labor management safety committee members must be selected by employees.
E. An employer that does not establish or administer a joint labor management safety committee is in violation of this article.
F. The commissioner may adopt rules to EFFECTUATE this section.
G. For the purposes of this section, "joint labor management Safety committee meeting" means a regularly scheduled meeting of committee members to discuss and evaluate any of the following:
1. Issues that have been brought to the attention of the committee.
2. Safety incidents or injuries.
3. Recommendations to prevent further safety incidents or injuries.
23-1455. Employment records; right to request; time to produce
A. An employer shall promptly provide the following information on request from a current employee or the designated employee's representative:
1. A written description of each quota to which the employee is subject to within two business days after receipt of the request.
2. A copy of the employee's work speed data within seven business days after receipt of the request.
3. A copy of the prior six months of aggregated data on work speed for similar employees at the same establishment within a reasonable period of time based on the scope of the request.
B. An employer shall promptly provide the following information on request of a former employee or the designated employee's representative:
1. a written description of the quota to which AN EMPLOYEE WAS subject to as of the date of THE EMPLOYEE'S separation within two business days after receipt of the request.
2. a copy of the employee's work speed data for the six months before the employee's date of separation within seven business days after receipt of the request.
3. a copy of aggregated data on work speed for similar employees at the same establishment for six months before the other EMPLOYEES' date of separation within a reasonable period of time based on the scope of the request.
C. This section does not require an employer to use quotas as described in this SECTION or to monitor work speed data. An employer that does not use quotas or does not monitor work speed data has no obligation to provide THE DATA.
23-1456. Unlawful retaliation; rebuttable presumption
A. An employer shall not retaliate, discriminate or take adverse action against a current or former employee for requesting information about a quota or the employee's work speed data or for filing a complaint based on this article. An employee does not need to refer to this article in order to be protected from any adverse action.
B. This section applies to current and former employees and current and former employees who mistakenly, but in good faith, allege violations of this section.
C. If an employer takes adverse action against an employee within ninety days after the employee's engaging or attempting to engage in activities protected by this article, such conduct shall raise a rebuttable presumption that the action is adverse in violation of this section. The presumption may be rebutted by clear and convincing evidence that:
1. The action was taken for other permissible reasons.
2. Engaging or attempting to engage in activities protected by this article was not a motivating factor in the adverse action.
23-1457. Enforcement; commission; annual report; rules
A. The commission:
1. Shall adopt rules as necessary to carry out this article.
2. May enforce this article.
3. Shall assess civil penalties.
4. May establish committees, as necessary.
B. On or before January 1, 2025, the commission shall submit an annual report to the governor, the president of the senate and the speaker of the house of representatives and shall provide a copy of this report to the secretary of state that shall include all of the following:
1. the number of claims filed with the commission pursuant to this article.
2. The number of warehouses that have reported an annual number of employee injuries that are above the industry average and related to quotas.
3. The number of investigations undertaken and enforcement actions initiated, per employer.
C. Based on the data that is reported to the United states Occupational Safety and Health Administration, if a worksite or employer is found to have an employee incidence rate of occupational injuries and illnesses that is at least thirty percent HIGHER than that year's average incidence rate for the relevant North American Industry Classification System codes, the commissioner shall open an investigation under this section. The employer must hold monthly joint labor management safety committee meetings as provided in section 23-1454 for two consecutive years or until the worksite or employer does not have an employee incidence rate of occupational injuries and illnesses that is thirty percent higher than the average yearly incidence rate for the relevant North American Industry Classification System codes.
D. In any successful action brought by the commission to enforce this article, the court may grant injunctive relief and damages in order to obtain compliance and shall award costs and reasonable attorney fees.
E. A current or former employee or a current or former employee's designated representative may bring an action for injunctive relief and damages to obtain compliance with this article and may recover costs and reasonable attorney fees on prevailing in the private right of action.
F. In any action involving a quota that prevented compliance with workplace health and safety regulations or meal or rest breaks, the injunctive relief is limited to:
1. The suspension of the quota.
2. Restitution damages.
3. Relief that addresses any retaliation or other adverse action taken by the employer.
G. A current or former employee or a current or former employee's DESIGNATED representative may be awarded damages equal to the greater of $10,000 or three times the amount of actual damages, including UNPAID wages and benefits in actions involving RETALIATION.
23-1458. Attorney general; commission; enforcement; penalty
A. The attorney general and the commission may enforce this section.
B. The court may:
1. Impose a penalty on an employer for failure to disclose a quota or personal speed data in compliance with this article. The penalty shall be a minimum of $100 per employee per pay period in which an employee was required to work without a disclosed quota or personal speed data.
2. Require employers to conspicuously post in the workplace the following information:
(a) Worker's rights under this article.
(b) The quota requirements per job.
(c) An employee's right to request a written description of a quota or work speed data.
(d) How to file a complaint with the commission and the attorney general's office.