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Synopsis of Seyfarth: Gov. Gavin Newsom approved AB 701, which will impose notice and other requirements on employers of quota employees at major California warehouse distribution centers, and vetoed AB 616, a bill of farm worker card check.
Acting on the first two major employment-related bills of interest to private employers, Governor Newsom approved on September 22, 2021 AB 701 (AM Lorena Gonzalez, D-San Diego) and vetoed AB 616 (AM Mark Stone, D-Scotts Valley).
The governor’s signature announcement states that AB 701 (entered into force January 1, 2022) “establishes new leading transparency measures for companies to disclose descriptions of production quotas to their workers and prohibits the use of algorithms that disrupt basic workers’ rights such as rest periods, toilet breaks or compliance with health and safety laws. The legislation ensures that workers cannot be fired or retaliated against if they fail to meet a dangerous quota and allows them to seek an injunction. “
Here are the main provisions of the bill, the consequences it creates and the actions covered employers should take.
Main requirements and prohibitions
AB 701 adds several sections of the Labor Code that will require employers with more than 100 California employees in a single warehouse distribution center – or with 1,000 or more California employees in multiple warehouse distribution centers – to give to each employee non-exempt (including employees of third party employers, temporary services or recruiting agencies) a written description of any applicable quota. This notice should include (1) the number of tasks to be performed or materials to be produced or handled, (2) the relevant time period and (3) any potential negative employment action that could result from a failure to do so. -respect of the quota. This written description must be provided upon hiring, or within days of the effective date of January 1, 2022.
AB 701 defines “quota” as “a labor standard under which an employee is assigned or required to perform at a specified productivity rate, or to perform a quantified number of tasks, or to handle or produce a quantified amount of material, within a defined period of time and during which the employee may experience adverse employment action if he does not meet the performance standard.
AB 701 prohibits employers from requiring employees to meet quotas that prevent compliance with meal or rest periods, washroom use (including reasonable travel to / from), health laws and occupational safety from the Labor Code or occupational health and safety standards. AB 701 also prohibits employers from taking action adverse to employment for non-compliance with quotas which (1) have not been disclosed or (2) do not allow a worker to comply with meal periods or rest or occupational health and safety laws / standards.
AB 701 provides that any action taken by an employee to comply with occupational health and safety standards is considered task time and productive time for the purposes of any quota or oversight system. For example, frequent hand washing, putting on / taking off necessary personal protective equipment, and locking out / tagging out equipment are common safety measures required by safety laws and regulations. should now be considered productive time. (AB 701 specifies that meal and rest periods are breaks that are not considered productive time, unless the employee is required to remain on call.)
Does this apply to you?
Wondering if your distribution center is subjecting you to this invoice? The bill defines “warehouse distribution centers” as establishments falling under four specific codes of the North American Industry Classification System: merchant wholesalers of durable and non-durable goods (423 and 424), general warehousing and storage (493110, excluding agricultural products), and electronic shopping and mail order houses (454110).
What information must covered employers provide to employees?
Current or former employees who believe meeting a quota has caused a violation of meal or rest standards or forced them to violate a Cal / OSHA standard can apply – and the employer must provide within 21 days – a written description of each applicable quota, as well as a copy of the last 90 days of the employee’s personal work speed data.
AB 701 limits former employees to one of these requests. In addition, the employer does not need to create data to satisfy a request, so if you are not monitoring quotas or work speed, you are under no obligation to provide the information.
Consequences of non-compliance?
AB 701 creates a rebuttable presumption of unlawful retaliation if an employer discriminates, retaliates, or takes adverse action against an employee within 90 days of requesting information on a quota or speed personal data , or to complain about a quota or a violation of any of the above provisions. Complaints eligible for protection include any report to the employer, labor commissioner, Cal / OSHA or any other local or state government agency.
AB 701 empowers individual employees and the labor commissioner to enforce its provisions. AB 701 allows current or former employees to sue for an injunction, and predominant employees can recover reasonable legal costs and fees.
AB 701 also requires the labor commissioner to issue citations and access workers’ compensation data to identify facilities where there are high rates of injury likely due to the use of unsafe quotas, and to report in the legislature the annual number of complaints filed, the data on the warehouse production quotas in warehouses in which the Workers’ Compensation Division indicated that the annual rates of industrial accidents are higher than the average for the industry, and the number of investigations and enforcement actions initiated, by employer. AB 701 also authorizes the Commissioner of Labor to adopt regulations regarding employee complaint procedures.
AB 701 specifically addresses the issue of PAGA’s liability, stating that in any PAGA action to enforce AB 701, the employer will have the right to remedy the alleged violations in accordance with Article 2699.3 of the Code of job.
“Plain language, please?” ”
Concretely, what does the adoption of the bill mean for employers?
(1) Employers should check if they are subject to AB 701: do they maintain an eligible warehouse distribution center and do they meet employee thresholds?
(2) Covered employers should assess their quota systems and document the basis for establishing these quotas, in order to establish that quotas do not directly or indirectly conflict with wage / hour or safety requirements. The assessment should ensure that any action taken by employees to comply with occupational health and safety standards (such as those that may be defined by Cal / OSHA) is considered productive time for the purposes of any quota system. or surveillance.
(3) Over the next few months, Covered Employers should prepare the required written description of each quota so that the required notices are ready for distribution to new hires as of January 1, 2022 and to all employees within 30 days thereafter. .
(4) Covered employers must be notified of quota information that must be disclosed within 21 days if a current or former employee requests this information.
A note on the veto of the governor of AB 616
Governor Newsom has vetoed AB 616, which would have created a process for farm workers to elect a labor representative through a ballot election. In his veto message, the governor cited inconsistencies and procedural issues related to the collection and review of ballots and asked the Labor and Manpower Development Agency to work with the Council of labor relations in agriculture to return to the drawing board and develop new policy proposals for legislative consideration.
Workplace solutions
The adoption of this new law places significant new demands on many companies operating in the warehouse distribution space. If you have any questions about how this law may apply to your workforce, or if you need help designing quota descriptions and employee disclosures, please contact your preferred Seyfarth lawyer. for help.
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