No official summary available for this bill.
[Congressional Bills 118th Congress]
[From the U.S. Government Publishing Office]
[S. 5208 Introduced in Senate (IS)]
<DOC>
118th CONGRESS
2d Session
S. 5208
To establish protections for warehouse workers, and for other purposes.
_______________________________________________________________________
IN THE SENATE OF THE UNITED STATES
September 25, 2024
Mr. Markey (for himself, Mr. Casey, Ms. Smith, Mr. Hawley, Mr. Brown,
Mr. Sanders, Mr. Padilla, Mrs. Gillibrand, Mr. Blumenthal, Mr. Welch,
Ms. Warren, and Ms. Butler) introduced the following bill; which was
read twice and referred to the Committee on Health, Education, Labor,
and Pensions
_______________________________________________________________________
A BILL
To establish protections for warehouse workers, and for other purposes.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Warehouse Worker Protection Act''.
SEC. 2. TABLE OF CONTENTS.
The table of contents for this Act is as follows:
Sec. 1. Short title.
Sec. 2. Table of contents.
TITLE I--WAREHOUSE WORKER PROTECTIONS
Sec. 101. Warehouse worker protections.
Sec. 102. Referral of complaints.
Sec. 103. Enforcement by the FTC.
TITLE II--NATIONAL LABOR RELATIONS ACT
Sec. 201. Amendments to National Labor Relations Act.
Sec. 202. National Labor Relations Board report.
TITLE III--OSHA STANDARDS
Sec. 301. Standard protecting covered employees from occupational risk
factors causing musculoskeletal disorders.
Sec. 302. Standard for protecting covered employees from delays in
medical treatment referrals following
injuries or illnesses.
Sec. 303. Correction of serious, willful, or repeated violations
pending contest and procedures for a stay.
Sec. 304. Definitions.
TITLE IV--MISCELLANEOUS PROVISIONS
Sec. 401. Severability.
Sec. 402. Preemption.
Sec. 403. Authorization of appropriations.
TITLE I--WAREHOUSE WORKER PROTECTIONS
SEC. 101. WAREHOUSE WORKER PROTECTIONS.
The Fair Labor Standards Act of 1938 is amended--
(1) by inserting after section 4 (29 U.S.C. 204) the
following:
``SEC. 5. ESTABLISHMENT OF FAIRNESS AND TRANSPARENCY OFFICE.
``(a) In General.--There is established in the Wage and Hour
Division of the Department of Labor the Fairness and Transparency
Office.
``(b) Director of the Fairness and Transparency Office.--The
President shall appoint a Director of the Fairness and Transparency
Office to head the Fairness and Transparency Office.
``(c) Employees and Advisory Boards of the Office.--
``(1) In general.--The Director--
``(A) may select, appoint, and employ, without
regard to the provisions of sections 3309 through 3318
of title 5, United States Code, individuals directly to
positions in the competitive service, as defined in
section 2102 of such title, to carry out the duties of
the Director under this Act; and
``(B) may fix the compensation of the individuals
described in subparagraph (A) without regard to chapter
51 and subchapter III of chapter 53 of title 5, United
States Code, relating to classification of positions
and General Schedule pay rates, except that the rate of
pay for such individuals may not exceed the rate
payable for level V of the Executive Schedule under
section 5316 of that title.
``(2) Fairness and transparency advisory board.--
``(A) In general.--The Director shall establish a
Fairness and Transparency Advisory Board to advise and
consult on the exercise of the functions of the
Director under this Act.
``(B) Composition.--The Fairness and Transparency
Advisory Board established under subparagraph (A) shall
be composed of--
``(i) as the Director determines
appropriate, covered employers and covered
employees or representatives of covered
employers and covered employees; and
``(ii) at least one of each of the
following:
``(I) Worker protection experts.
``(II) Civil rights experts.
``(III) Health and safety experts.
``(IV) Workplace technology
experts.
``(V) Disability law experts.
``(VI) Representatives of labor
organizations.
``(VII) Representatives of worker
advocacy organizations.
``(C) Appointments.--The Director shall--
``(i) appoint members to the advisory board
established under subparagraph (A); and
``(ii) ensure a partisan balance in the
membership of the advisory board.
``(D) Meetings.--The advisory board established
under subparagraph (A) shall meet--
``(i) at the call of the Director; and
``(ii) not less than 2 times annually.
``(E) Compensation and travel expenses.--A member
of the Fairness and Transparency Advisory Board
established under subparagraph (A) who is not an
officer or employee of the Federal Government shall--
``(i) be entitled to receive compensation
at a rate fixed by the Director while attending
meetings of the advisory board, including
travel time; and
``(ii) receive travel expenses, including
per diem in lieu of subsistence, in accordance
with applicable provisions under subchapter I
of chapter 57 of title 5, United States Code.
``(F) Exemption from the federal advisory committee
act.--The Fairness and Transparency Advisory Board
established under subparagraph (A) shall be exempt from
chapter 10 of title 5, United States Code (commonly
known as the `Federal Advisory Committee Act').
``(3) Use of voluntary services.--The Director may, as may
from time to time be needed, use any voluntary or uncompensated
services.
``(4) Attorneys.--Attorneys appointed under this subsection
or the Solicitor of Labor may appear for and represent the
Director in any litigation.
``(d) Rulemaking.--
``(1) In general.--The Secretary, acting through the
Director and the Administrator of the Wage and Hour Office, may
issue orders and guidance or promulgate regulations as may be
necessary or appropriate to enable the Secretary to carry out
the purposes and objectives of this section, and to prevent
evasions thereof.
``(2) Consultation.--In issuing orders and guidance or
promulgating regulations under this subsection, the Secretary,
acting through the Director and the Administrator of the Wage
and Hour Office, may consult with the Occupational Safety and
Health Administration and Federal agencies that have
jurisdiction over labor and employment issues, including the
Equal Employment Opportunity Commission, the National Labor
Relations Board, the National Mediation Board, and the Merit
Systems Protection Board.'';
(2) by inserting after section 7 (29 U.S.C. 207) the
following:
``SEC. 8. WAREHOUSE WORKER PROTECTIONS.
``(a) Definitions.--In this section:
``(1) Adverse employment action.--The term `adverse
employment action', with respect to a covered employee, means a
change by the covered employer of the covered employee in the
compensation, terms, conditions, or privileges of the job of
the covered employee that, from the perspective of a reasonable
person, puts the covered employee in a materially adverse
position than prior to the change, including termination, a
reduction in benefits, disciplinary action, demotion,
promotion, transfer, imposition of a work schedule more
burdensome to the covered employee, reduction of scheduled
hours, adjustment in ability for promotion, or other
modifications to compensation, terms, conditions, or privileges
of employment.
``(2) Aggregated work speed data.--The term `aggregated
work speed data' means employee work speed data that a covered
employer has combined, or collected together, in a summary or
other form so that the employee work speed data cannot, at any
point, be identified or linked with any specific covered
employee.
``(3) Covered facility.--The term `covered facility' means
any warehouse distribution center described in the North
American Industry Classification System code--
``(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; or
``(E) 492110, for couriers and express delivery
services.
``(4) Covered employee.--The term `covered employee' means
an employee who--
``(A) is employed by an employer for the
performance of work at a covered facility; and
``(B) is subject to a quota while performing work
at such covered facility.
``(5) Covered employer.--
``(A) In general.--The term `covered employer'
means an employer that--
``(i) is engaged in commerce, in the
production of goods for commerce, or in an
enterprise engaged in commerce or in the
production of goods for commerce, including
such an employer that is a contractor,
subcontractor, temporary service firm, staffing
agency, independent contractor, employee
leasing entity, or similar entity;
``(ii) employs a covered employee for the
performance of work at a covered facility; and
``(iii) employs more than a total of 200
employees (including on a full- or part-time
basis) for the performance of work at all
covered facilities owned or operated by the
employer.
``(B) Rule of construction.--For purposes of
determining the number of employees under subparagraph
(A)(iii), the total number of employees employed for
the performance of work as described in such
subparagraph shall include all employees of any
affiliate of the employer (as determined in accordance
with section 121.103 of title 13, Code of Federal
Regulations, as in effect on the date of enactment of
the Warehouse Worker Protection Act).
``(6) Defined time period.--The term `defined time period'
means any unit of time measurement equal to or less than one
day, including hours, minutes, and seconds and any fraction
thereof.
``(7) Designated employee representative.--The term
`designated employee representative' means any representative
designated by a covered employee, including an employee
representative that has a collective bargaining relationship
with the covered employer of the covered employee.
``(8) Director.--The term `Director' means the Director of
the Fairness and Transparency Office established by section 5.
``(9) Egregious misconduct.--The term `egregious
misconduct', with respect to a covered employee, means
deliberate or grossly negligent conduct that endangers the
safety or well-being of the covered employee, co-workers of the
covered employer, customers, or other persons, including
discrimination against or harassment of co-workers, customers,
or other persons.
``(10) Employee work speed data.--The term `employee work
speed data' means information a covered employer collects,
stores, analyzes, or interprets relating to the performance of
work by a covered employee of the covered employer for a quota,
including information with respect to the--
``(A) quantities of tasks performed by the covered
employee;
``(B) quantities of items or materials handled or
produced by the covered employee;
``(C) rates or speeds of tasks performed by the
covered employee;
``(D) measurements or metrics of covered employee
performance in relation to a quota; or
``(E) time categorized with respect to the covered
employee as performing tasks or not performing tasks.
``(11) Quota.--The term `quota' means an express or implied
performance standard or performance target, including such a
standard or target used to rank or compare an employee in
relation to the performance of another employee or in relation
to the past performance of the employee, under which--
``(A)(i) an employee is actually or effectively
assigned, required, or expected within a defined time
period (with or without any reasonable accommodation
provided under Federal, State, or local law) to--
``(I) perform--
``(aa) a quantified number
of tasks; or
``(bb) at a specified
productivity speed; or
``(II) handle or produce a
quantified amount of material without a
certain number of errors or defects;
and
``(ii) such assignment, requirement, or expectation
is measured at the individual or group level for such
defined time period;
``(B) actions by an employee are categorized and
measured between time performing tasks and not
performing tasks within a defined time period; or
``(C) increments of time of a defined time period
during which an employee is or is not doing a
particular activity are measured, recorded, or tallied.
``(12) Similarly situated covered employee.--The term
`similarly situated covered employee', with respect to a
covered employee, means another covered employee who holds the
same job or responsibilities as the covered employee.
``(13) Tribal government.--The term `Tribal government'
means the recognized governing body of an Indian Tribe.
``(14) Workplace surveillance.--The term `workplace
surveillance' means any employer surveillance (on- or off-duty)
with respect to an employee, including the detection,
monitoring, interception, collection, exploitation,
preservation, protection, transmission, or retention of data
concerning activities or communications with respect to the
employee, including through the use of a product or service
marketed, or that can be used, for such purposes, such as a
computer, telephone, wire, radio, camera, sensor,
electromagnetic, photoelectronic, handheld or wearable device,
or photo-optical system.
``(15) Work station.--The term `work station' means the
area of a covered facility within which a covered employee is
assigned to perform tasks for the longest duration of time
during a day.
``(b) Communication With Covered Employees Regarding Quotas and
Workplace Surveillance.--
``(1) In general.--On the later of the date a covered
employee is hired by a covered employer or 180 days after the
date of enactment of this section, each covered employer shall
provide to each covered employee of the covered employer--
``(A) a written description of each quota to which
the covered employee is subject, including--
``(i) as applicable, the quantified number
of tasks to be performed or of materials to be
produced or handled, or other performance
measure, within the defined time period, for
the quota;
``(ii) any potential discipline or adverse
employment action that could result from
failure to meet the quota;
``(iii) how performance targets or
performance standards for the quota are
calculated;
``(iv) whether there is any incentive or
bonus program associated with meeting or
exceeding the quota and, if applicable, how the
incentive or bonus program operates; and
``(v) how the quota is monitored, including
a description of--
``(I) what employee work speed data
are being collected;
``(II) how the employee work speed
data are being collected, including a
description of any workplace
surveillance technology used on the
covered employee by the covered
employer;
``(III) where and when the employee
work speed data are being collected;
``(IV) the frequency of the
collection;
``(V) where the storage of the
employee work speed data is located;
``(VI) the business purposes for
which the employee work speed data are
being used; and
``(VII) as applicable, the identity
of any third party--
``(aa) used for such
workplace surveillance;
``(bb) to which data from
such workplace surveillance is
transferred; and
``(cc) from which data of
the covered individual is or
may be purchased or acquired;
and
``(B) a written description of and training with
respect to how the covered employee may file a
complaint regarding a violation of this section or a
standard promulgated under title III of the Warehouse
Worker Protection Act.
``(2) Changes to quota or workplace surveillance.--Each
covered employer shall provide to any applicable covered
employee an updated written description of any information
provided under paragraph (1) not less than 2 business days
before any changes with respect to such information are made.
``(3) Requirements for taking an adverse employment action
on quota compliance.--
``(A) In general.--A covered employer that takes an
adverse employment action against a covered employee
for work performance that does not meet requirements
with respect to a quota shall provide--
``(i) a written explanation to the covered
employee regarding the manner in which the
covered employee failed to perform, including a
description of the applicable quota and a
comparison of such work performance to such
quota; and
``(ii) if the adverse employment action was
based on employee work speed data, a copy of
the employee work speed data in a human-
readable format that a reasonable individual
can understand.
``(B) Notice for actions unrelated to quota.--A
covered employer that, with respect to any covered
employee who is subject to a quota, takes an adverse
employment action against such covered employee for any
reason that is unrelated to compliance with the quota
shall provide to such covered employee a written
confirmation that such action was unrelated to
compliance with the quota.
``(4) Termination.--
``(A) In general.--Except as provided in clause
(ii), a covered employer that seeks to terminate a
covered employee shall, regardless of whether the
termination relates to work performance with respect to
a quota, provide to the covered employee a written
notice of the intent to terminate the covered employee.
``(B) Egregious misconduct.--Notwithstanding
subparagraph (A), a covered employer may terminate a
covered employee without providing such written notice
if the covered employee engaged in egregious
misconduct.
``(5) Descriptions.--Each covered employer shall--
``(A) provide any written description, notice,
explanation, or confirmation described in paragraph
(1), (2), (3), or (4) to a covered employee--
``(i) through a human representative of the
covered employer at the work station of the
covered employee; and
``(ii) in a manner required by the Director
that--
``(I) is accessible;
``(II) allows the covered employee
to transport the data in the
description, notice, explanation, or
confirmation without hindrance;
``(III) is in plain language; and
``(IV) is in the primary language
of the covered employee; and
``(B) make such description, notice, explanation,
or confirmation available to the covered employee
electronically.
``(c) Protection From Quotas.--
``(1) Prohibited quotas.--A covered employer may not
require any quota for a covered employee that would--
``(A) prevent--
``(i) compliance with any required meal or
rest period or any other break required by
Federal, State, or local law;
``(ii) compliance with health and safety
provisions required by Federal, State, or local
law;
``(iii) the use by the covered employee of
bathroom facilities, including reasonable
travel time to and from bathroom facilities
that takes into account the architecture of the
covered facility; or
``(iv) compliance with a covered employee's
right to reasonable accommodations or
nondiscrimination as required by Federal,
State, or local law;
``(B) set a performance target or performance
standard that measures total output for the covered
employee over an increment of time that is shorter than
one day;
``(C) measure and evaluate the output or
performance of a covered employee during any paid or
unpaid break to which the covered employee is entitled
under applicable law, contract, or industry standard,
including breaks to use bathroom facilities and
reasonable travel time to and from bathroom facilities;
``(D) prevent or discourage the covered employee
from exercising any right under the National Labor
Relations Act (29 U.S.C. 151 et seq.) or any other
Federal law;
``(E) prevent or discourage the covered employee
from exercising any right guaranteed in an applicable
collective bargaining agreement; or
``(F) violate the generally accepted principles of
work measurement as set forth in the Code of Work
Measurement Ethics of the American Institute of
Industrial Engineers and recognized by the Secretary.
``(2) Adverse employment action.--A covered employer may
not take adverse employment action against a covered employee
for failure to meet a quota that--
``(A) violates paragraph (1);
``(B) was not described to the covered employee in
accordance with subsection (b);
``(C) is based solely on ranking the performance of
the covered employee in relation to the performance of
another covered employee or in relation to the past
performance of that covered employee; or
``(D) is based on continuously measuring,
recording, or tallying increments of time within a
defined time period during which a covered employee is
or is not doing a particular activity.
``(d) Minimization.--
``(1) Collection.--In establishing, maintaining, or using
employee work speed data with respect to a quota for a covered
employee, a covered employer may not collect, use, maintain, or
transfer data on or of the covered employee except as strictly
necessary to monitor the compliance of the covered employee
with the quota.
``(2) Employee access.--In establishing, maintaining, or
using employee work speed data with respect to a quota for a
covered employee, a covered employer may not disclose any
information collected on a covered employee with respect to the
quota to any other covered employee of the covered employer
except as strictly necessary to fulfill a specific and
reasonable business rationale of the covered employer.
``(e) Recordkeeping.--
``(1) In general.--Each covered employer shall--
``(A) maintain contemporaneous records, with
respect to each covered employee of the covered
employer, of--
``(i) the employee work speed data of each
such covered employee;
``(ii) the aggregated work speed data for
similarly situated covered employees at the
same place where each such covered employee
performs work for the covered employer; and
``(iii) the written descriptions of the
quota of each such covered employee provided
under subsection (b)(1);
``(B) maintain such records for the duration of the
employment of each relevant covered employee; and
``(C) make such records available to the Secretary
upon request.
``(2) Supplementation and dispute of records.--
``(A) Supplementation of records.--Each covered
employer shall enable a covered employee, upon request
of the covered employee at or after the time of any
employee work speed data collection with respect to the
covered employee, to supplement the employee work speed
data by recording any reason the covered employee
provides for any defined time period during which the
covered employee was not performing work-related tasks,
including because the covered employee was taking a
paid or unpaid break, using a bathroom facility
(including reasonable travel to and from the facility),
reporting an injury or receiving attention due to an
injury, exercising a right guaranteed under the
National Labor Relations Act (29 U.S.C. 151 et seq.) or
another Federal law, or exercising a right guaranteed
under an applicable covered bargaining agreement.
``(B) Dispute process.--
``(i) In general.--Each covered employer
shall enable a covered employee, upon request
of the covered employee at or after the time of
any data collection with respect to the covered
employee, to review and request correction of
the employee work speed data in accordance with
clause (ii).
``(ii) Correction of employee work speed
data.--A covered employer that receives a
request by a covered employee under clause (i)
shall--
``(I) investigate and determine
whether the employee work speed data is
inaccurate; and
``(II) if determined to be
inaccurate--
``(aa) promptly correct the
inaccurate data and notify the
covered employee of the covered
employer's determination and
correction; and
``(bb) review and adjust,
as appropriate, any adverse
employment action that was,
partially or solely, based on
the inaccurate data and notify
the covered employee of the
adjustment.
``(3) Retention of records.--
``(A) In general.--After the termination of
employment of a covered employee of a covered employer,
the covered employer shall--
``(i) for not less than 3 years after the
date of such termination, retain the records
described in paragraph (1) with respect to the
6-month period prior to such date; and
``(ii) make such records available to the
Secretary upon request.
``(4) Rule of construction.--Nothing in this subsection
shall require a covered employer to keep records described in
paragraph (1) with respect to employee work speed data if such
covered employer does not otherwise monitor employee work speed
data.
``(f) Right to Request.--
``(1) In general.--A covered employer shall, upon receiving
a request under paragraph (2) or (3), provide the relevant
copies described in such paragraphs to, as the case may be, the
covered employee, designated employee representative, or
individual who was a covered employee--
``(A) except as provided in subparagraph (B)(ii),
at no cost to the covered employee, designated employee
representative, or individual who was a covered
employee;
``(B) with respect to--
``(i) a covered employee, by a human
representative of the covered employer; or
``(ii) a designated employee representative
or an individual who was a covered employee, by
a human representative of the covered employer
or through the mail (at the cost of the
designated employee representative or
individual, respectively); and
``(C) as soon as practicable but not later than--
``(i) 7 business days after receipt of a
request for such copies with respect to
employee work speed data or aggregate work
speed data; or
``(ii) 2 business days after receipt of a
request for any other copy.
``(2) Requests during employment.--A covered employee, or a
designated employee representative of such covered employee at
the request of the covered employee, may request from the
covered employer of the covered employee a copy of the written
description described under subsection (b), a copy of the
employee work speed data (in a human-readable format that a
reasonable individual can understand) of the covered employee
for the preceding 6-month period, and a copy of the aggregated
work speed data (in a human-readable format that a reasonable
individual can understand) for similarly situated covered
employees at the same place where the covered employee performs
work for the covered employer for the preceding 6-month period.
``(3) Requests after employment termination.--An individual
who was a covered employee with respect to a covered employer,
or a designated employee representative with respect to such an
individual, may, not later than 3 years after the date of
termination of employment of the covered employee with the
covered employer, request from the covered employer a copy of--
``(A) the written description described under
subsection (b) effective on the date of termination of
the covered employee;
``(B) the employee work speed data (in a human-
readable format that a reasonable individual can
understand) of the covered employee for the 6-month
period prior to such date of termination; and
``(C) the aggregated work speed data (in a human-
readable format that a reasonable individual can
understand) for similarly situated covered employees at
the same place where the covered employee performs work
for the covered employer for such 6-month period.
``(4) Rule of construction.--Nothing in this subsection
shall require a covered employer to--
``(A) monitor employee work speed data; or
``(B) provide information related to employee work
speed data if the covered employer does not otherwise
monitor such employee work speed data.
``(g) Posting of Notices.--
``(1) In general.--Each covered employer shall post, in a
conspicuous and accessible location, a notice in the covered
facility of the covered employer regarding the rights of
covered employees under this section, including what
constitutes a permissible quota, the right to request quota
descriptions and employee speed data information, and the right
to make a complaint to Federal authorities regarding a
violation of any right under this section.
``(2) Requirements for notices.--Each notice described in
paragraph (1) shall be in a manner required by the Director
that--
``(A) is in plain language; and
``(B) is in English, Spanish, and any other
language that constitutes the primary language of any
covered employee at the covered facility.
``(h) Breaks for Covered Employees.--
``(1) In general.--Each covered employer shall--
``(A) with respect to each covered employee of such
covered employer--
``(i) provide, for every 4 hours of work by
such a covered employee, to the covered
employee not less than one 15-minute rest break
paid at the regular rate at which the covered
employee is employed; and
``(ii) provide, at the time the covered
employer hires such a covered employee, notice
to the covered employee, in plain language and
the primary language of the covered employee,
that--
``(I) the covered employee is
entitled to the paid rest breaks
described in clause (i);
``(II) retaliation by the covered
employer against the covered employee
for requesting or taking such paid rest
breaks is prohibited; and
``(III) the covered employee, or a
designated employee representative of
the covered employee, has a right to
file a complaint with the Secretary for
any violation by the covered employer
of this subsection; and
``(B) display, in a conspicuous and accessible
location, a sign at each covered facility of the
covered employer that includes, in English, Spanish,
and any other language that constitutes the primary
language of any covered employee at the covered
facility, the information in the notice described in
subparagraph (A)(ii).
``(2) Notice.--Not later than 180 days after the date of
enactment of this section, the Secretary shall issue
regulations with respect to the design and content of the sign
described in paragraph (1)(B), including a sample design.
``(3) Interaction with other laws.--Nothing in this
subsection shall be construed to supersede or preempt any
Federal, State, or local law or collective bargaining agreement
requiring longer paid rest breaks than those required under
paragraph (1)(A)(i).
``(i) Unlawful Retaliation.--
``(1) In general.--A person, including a covered employer,
an agent of a covered employer, or person acting as or on
behalf of a covered employer conducting hiring or any related
activity, or an officer or agent of any entity, business,
corporation, partnership, or limited liability company, may
not--
``(A) discharge or in any way retaliate,
discriminate, or take any adverse employment action
against any individual for exercising any right
conferred under this section, or for being perceived as
exercising such a right, including for--
``(i) requesting copies under subsection
(f);
``(ii) filing a complaint under
subparagraph (A) of section 16(f) regarding a
violation of this section or designating a
representative in accordance with subparagraph
(B) of such section to file such a complaint;
or
``(iii) commencing a proceeding under
section 16(b) for a violation of this section;
or
``(B) otherwise prevent an individual for
exercising such a right or take any action against an
individual that might deter a reasonable employee from
asserting a right conferred under this section.
``(2) Protections for good faith allegations.--The
protections under paragraph (1) shall apply to any individual
who mistakenly, but in good faith, alleges a violation of a
requirement of this section.
``(3) Explicit reference not required.--A complaint or
other communication by an individual, including a covered
employee, may be the exercise of a right for purposes of
paragraph (1) regardless of whether the complaint or
communication is in writing or makes explicit reference to this
Act.
``(4) Rebuttable presumption.--If a person takes adverse
action against a covered employee within 90 days of the covered
employee engaging, or attempting to engage in, activities
protected by paragraph (1), such conduct shall establish a
rebuttable presumption that the adverse action is an adverse
action in violation of such paragraph. Such presumption may be
rebutted by clear and convincing evidence that--
``(A) the action was taken for other permissible
reasons; and
``(B) the engaging or attempting to engage in
activities protected by paragraph (1) was not a
motivating factor in the adverse action.
``(j) Quota Task Force.--Not later than 90 days after the date of
the enactment of this section, the Director shall convene a task force
with labor organizations, worker advocacy organizations, and covered
employees to develop strategies for labor organizations and worker
advocacy organizations to--
``(1) assist in the enforcement of this section;
``(2) train covered employees with respect to new rights
provided through this section; and
``(3) provide the Director with recommendations on the
implementation of regulations related to this section.'';
(3) in section 9 (29 U.S.C. 208), by striking ``and
investigation'' and inserting ``, investigation, or
inspection'';
(4) by repealing section 10 (29 U.S.C. 210);
(5) in section 11 (29 U.S.C. 211), by adding at the end the
following:
``(e)(1) The Secretary, acting through the Director of the Fairness
and Transparency Division, shall, as provided in subsection (a) and
paragraph (2), investigate violations of section 8, including any
violations of any regulation or order issued with respect to that
section.
``(2) In addition to powers otherwise provided to the Secretary
under subsection (a), the Secretary, in investigating violations of
section 8, may upon presenting appropriate credentials to the owner,
operator, or agent in charge--
``(A) enter without delay and at reasonable times any
covered facility of a covered employer; and
``(B) inspect and investigate during regular working hours
and at other reasonable times, and within reasonable limits and
in a reasonable manner, any such covered facility and all
pertinent conditions, structures, machines, apparatus, devices,
equipment, and materials therein, and to question privately any
such covered employer, owner, operator, agent, or covered
employee.
``(3)(A) In conducting an inspection during an investigation into a
violation of section 8, the Secretary shall permit, at the request of a
covered employee, a representative of a labor organization or a worker
advocacy organization, or another designee of the covered employee, to
accompany any inspectors during such inspection.
``(B) A covered employee may, regardless of the relationship
between the covered employee and the labor organization, worker
advocacy organization, or other designee, anonymously request to the
Secretary that the Secretary permit a representative of such labor
organization, worker advocacy organization, or other designee accompany
inspectors during an inspection in accordance with paragraph (1).
``(f)(1) Not later than 30 days after an event described in
paragraph (2), the Secretary shall open an investigation under this
section (that includes an on-site inspection) into any covered employer
to determine if such covered employer is violating section 8.
``(2) An event described in this paragraph is, with respect to a
covered employer, either of the following:
``(A) The Secretary determines that the covered employer--
``(i) has an annual total of employee work hours
that is not less than 40,000 hours; and
``(ii) has an annual employee injury rate, overall
or at a worksite, that is not less than 1.5 times the
warehousing industry's average annual injury rate, as
determined by the Bureau of Labor Statistics in the
most recent (as of such determination) publication
regarding fatal and nonfatal occupational injuries and
illnesses data.
``(B) The Secretary receives, during any one-year period,
not less than--
``(i) 5 credible complaints from covered employees
of the covered employer, individuals who were covered
employees of the covered employer, or designated
representatives of such covered employees or
individuals, about violations under section 8 at a
worksite; or
``(ii) 10 credible complaints from covered
employees of the covered employer, individuals who were
covered employees of the covered employer, or
designated representatives of such covered employees or
individuals, about such violations at multiple
worksites operated by the covered employer.
``(3) In conducting an investigation under paragraph (1), the
Secretary shall select representatives of a labor organization or a
worker advocacy organization who have specific knowledge of the
relevant industry to conduct outreach to workers with respect to such
investigation and aid and accompany investigators in such
investigation.
``(g) For purposes of subsections (e) and (f), the terms `covered
employee', `covered employer', and `covered facility' have the meanings
given such terms in section 8(a).'';
(6) in section 15(a) (29 U.S.C. 215(a))--
(A) in paragraph (5), by striking ``; and'' and
inserting a semicolon;
(B) in paragraph (6), by striking the period at the
end and inserting ``; and''; and
(C) by adding at the end the following:
``(7) to violate any of the provisions of section 8.''; and
(7) in section 16 (29 U.S.C. 216)--
(A) in subsection (b)--
(i) by striking ``15(a)(3)'' each place it
appears and inserting ``8, 15(a)(3),'';
(ii) in the second sentence, by inserting
``and, in the case of a violation of section 8,
of an amount for the direct or foreseeable
pecuniary harms resulting from the violation
and an amount equal to $10,000 per violation of
subsection (b), (d), (e), (f), or (g) of such
section or an amount equal to $25,000 per
violation of subsection (c), (h), or (i) of
such section'' before the period at the end of
the sentence; and
(iii) in the fifth sentence, by striking
``No'' and inserting ``Except with respect to
an action brought regarding a violation of
section 8, no'';
(B) in subsection (e)--
(i) by redesignating paragraphs (3), (4),
and (5) as paragraphs (4), (5), and (6),
respectively;
(ii) by inserting after paragraph (2), the
following:
``(3) Any person who violates section 8 shall be subject to
a civil penalty--
``(A) in an amount not more than $76,987 per
violation; or
``(B) for repeat or willful violations, in an
amount not more than $769,870 per violation.''; and
(iii) in paragraph (4)(C), as so
redesignated, by striking ``section 15(a)(4)''
and inserting ``paragraph (4) or (7) of section
15(a)''; and
(C) by adding at the end the following:
``(f) Administrative Complaints Regarding Warehouse Worker
Protections.--
``(1) In general.--A covered employee or an individual who
was a covered employee may--
``(A) file a complaint of a violation of section 8
with the Secretary; and
``(B) designate a representative of a labor
organization or worker advocacy organization,
regardless of the relationship between the covered
employee or individual and the labor organization or
worker advocacy organization, to--
``(i) file the complaint on behalf of the
covered employee or individual; or
``(ii) represent the covered employee or
individual for purposes of engagement with the
Secretary regarding such complaint, including
being present at employee interviews and
participating in workplace inspections,
conferences, and settlement negotiations.
``(2) Definition of covered employee.--For purposes of
paragraph (1), the term `covered employee' has the meaning
given such term in section 8(a).
``(g) Exemption From the Federal Arbitration Act Regarding
Warehouse Worker Protections.--
``(1) In general.--Notwithstanding chapter 1 of title 9,
United States Code (commonly known as the `Federal Arbitration
Act'), no predispute arbitration agreement or predispute joint-
action waiver (as those terms are defined in section 401 of
title 9, United States Code) shall be valid or enforceable with
respect to claims arising under this Act for violations of
section 8.
``(2) Arbitration pursuant to a collective bargaining
agreement.--Nothing in this subsection shall limit the
enforceability of any arbitration provision in a collective
bargaining agreement between a covered employer (as defined in
section 8(a)) and a labor organization.
``(h) Exception From Class Action Prerequisites for Actions
Regarding Warehouse Worker Protections.--An employee who brings an
action for a violation of section 8 on behalf of employees similarly
situated shall be considered to have satisfied paragraphs (1) through
(4) of rule 23(a) of the Federal Rules of Civil Procedure for purposes
of such an action.''.
SEC. 102. REFERRAL OF COMPLAINTS.
(a) Memorandum of Understanding.--The Director of the Fairness and
Transparency Office established by section 5 of the Fair Labor
Standards Act of 1938 (as added by section 101) and the Administrator
of the Wage and Hour Office of the Department of Labor shall jointly
enter into a memorandum of understanding with the Assistant Secretary
of Labor for Occupational Safety and Health to encourage efficient
enforcement of relevant labor laws, including through information
sharing, referral of complaints, and cross-training of inspectors and
investigators. The memorandum of understanding shall encourage
coordination of enforcement activity in States enforcing relevant labor
law under a State plan that has been approved by the Secretary under
section 18 of the Occupational Safety and Health Act of 1970 (29 U.S.C.
667).
(b) Referral of Complaints and Cross-Training.--The Director of the
Fairness and Transparency Office shall, to the greatest extent
possible--
(1) encourage the referral of relevant complaints from and
to the Equal Employment Opportunity Commission, the National
Institute for Occupational Safety and Health, the Environmental
Protection Agency, the National Labor Relations Board, and
other Federal and State agencies that may conduct inspections
related to occupational health and safety in covered facilities
(as defined in section 8(a) of the Fair Labor Standards Act of
1938); and
(2) promote cross-training of inspectors and investigators
in the Equal Employment Opportunity Commission, National
Institute for Occupational Safety and Health, Environmental
Protection Agency, and such other Federal and State agencies
for inspections related to working conditions in such covered
facilities.
SEC. 103. ENFORCEMENT BY THE FTC.
(a) Unfair or Deceptive Acts or Practices.--A violation of section
8 of the Fair Labor Standards Act (as added by section 101) shall be
treated 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)).
(b) Powers of the FTC.--
(1) In general.--The Federal Trade Commission (in this
section referred to as the Commission) shall enforce section 8
and the regulations promulgated under this Act in the same
manner, by the same means, and with the same jurisdiction,
powers, and duties as though all applicable terms and
provisions of the Federal Trade Commission Act (15 U.S.C. 41 et
seq.) were incorporated into and made a part of this Act.
(2) Privileges and immunities.--Any person who violates
section 8 of the Fair Labor Standards Act shall be subject to
the penalties and entitled to the privileges and immunities
provided in the Federal Trade Commission Act (15 U.S.C. 41 et
seq.).
(3) Authority preserved.--Nothing in this Act shall be
construed to limit the authority of the Commission under any
other provision of law.
(4) Rulemaking.--The Commission may promulgate in
accordance with section 553 of title 5, United States Code,
such rules as may be necessary to carry out this section.
TITLE II--NATIONAL LABOR RELATIONS ACT
SEC. 201. AMENDMENTS TO NATIONAL LABOR RELATIONS ACT.
(a) In General.--Section 8(a) of the National Labor Relations Act
(29 U.S.C. 158) is amended--
(1) in paragraph (5) by striking the period at the end and
inserting ``; and''; and
(2) by adding at the end the following:
``(6) to impose on an employee a quota that significantly
discourages or prevents, or is intended to significantly
discourage or prevent, an employee from exercising the rights
guaranteed in section 7.''.
(b) Presumption of Retaliation.--Section 8 of the such Act (29
U.S.C. 158) is amended by adding at the end the following:
``(h) Presumption of Retaliation Related to a Quota.--Any action to
impose a quota on an employee that is taken against the employee within
90 days of an employee exercising the rights guaranteed in section 7
shall establish a rebuttable presumption that the action is
discrimination against the employee in violation of subsection
(a)(6).''.
(c) Definitions.--Section 2 such Act (29 U.S.C. 152) is amended by
adding at the end the following:
``(15) Quota.--
``(A) In general.--The term `quota' means a
performance standard or performance target, including
such a standard or target used to rank an employee in
relation to the performance of another employee or in
relation to the past performance of the employee, under
which--
``(i)(I) an employee is actually or
effectively assigned, required, or expected
within a defined time period (with or without
any reasonable accommodation provided under
Federal, State, or local law) to--
``(aa) perform--
``(AA) a quantified
number of tasks; or
``(BB) at a
specified productivity
speed; or
``(bb) handle or produce a
quantified amount of material
without a certain number of
errors or defects; and
``(II) such assignment, requirement, or
expectation is measured at the individual or
group level for such defined time period;
``(ii) actions by an employee are
categorized and measured between time
performing tasks and not performing tasks
within a defined time period; or
``(iii) increments of time of a defined
time period during which an employee is or is
not doing a particular activity are measured,
recorded, or tallied.
``(B) Defined time period.--For purposes of
subparagraph (A), the term `defined time period' means
any unit of time measurement equal to or less than one
day, including hours, minutes, and seconds and any
fraction thereof.''.
SEC. 202. NATIONAL LABOR RELATIONS BOARD REPORT.
The National Labor Relations Board shall--
(1) examine cases in which a quota (as such term is defined
in section 2 of the National Labor Relations Act (29 U.S.C.
152)) was used as a reason to deny a worker rights under the
National Labor Relations Act; and
(2) as often as practicable, submit a report on such cases
to--
(A) the Committee on Health, Education, Labor, and
Pensions of the Senate; and
(B) the Committee on Education and the Workforce of
the House of Representatives.
TITLE III--OSHA STANDARDS
SEC. 301. STANDARD PROTECTING COVERED EMPLOYEES FROM OCCUPATIONAL RISK
FACTORS CAUSING MUSCULOSKELETAL DISORDERS.
(a) Proposed Standard.--Not later than 3 years after the date of
enactment of this Act, the Secretary shall, pursuant to section 6 of
the Occupational Safety and Health Act of 1970 (29 U.S.C. 655), publish
in the Federal Register a proposed standard for ergonomic program
management for covered employers with respect to covered employees,
including requirements for--
(1) hazard identification and ergonomic job evaluations for
covered employees, including requirements for covered employee
and designated employee representative participation in such
identification with the aim of maximizing such participation;
(2) hazard control at covered facilities, which may rely on
the principles of the hierarchy of controls and which may
include measures such as equipment and workstation redesign,
work pace reductions, or job rotation to less forceful or
repetitive jobs;
(3) training for covered employees regarding covered
employer activities, occupational risk factors, and training on
controls and recognition of symptoms of musculoskeletal
disorders; and
(4) medical management for covered employees that
includes--
(A) encouraging early reporting of musculoskeletal
disorder symptoms;
(B) first aid delivered by those operating under
State licensing requirements; and
(C) systematic evaluation and early referral for
medical attention.
(b) Final Standard.--Not later than 4 years after the date of
enactment this Act, the Secretary shall, pursuant to section 6 of the
Occupational Safety and Health Act of 1970 (29 U.S.C. 655), publish in
the Federal Register a final standard based on the proposed standard
under subsection (a).
SEC. 302. STANDARD FOR PROTECTING COVERED EMPLOYEES FROM DELAYS IN
MEDICAL TREATMENT REFERRALS FOLLOWING INJURIES OR
ILLNESSES.
(a) Proposed Standard.--Not later than 1 year after the date of
enactment of this Act, the Secretary shall, pursuant to section 6 of
the Occupational Safety and Health Act of 1970 (29 U.S.C. 655), publish
in the Federal Register a proposed standard requiring that--
(1) all covered employers have a person readily available
at the covered facility of the covered employer who is
adequately trained to render first aid and ensure that such
person provides first aid to any injured or ill covered
employee and, without delay, refers any such covered employee
who reports an injury or illness that requires further medical
treatment to an appropriate medical professional for such
treatment; and
(2) all covered employers provide to the covered employees
of the covered employer occupational medicine consultation
services through a physician who is board certified in
occupational medicine, which services shall include--
(A) regular review of any health and safety
program, medical management program, or ergonomics
program of the covered employer;
(B) review of any work-related injury or illness of
a covered employee;
(C) providing onsite health services for treatment
of such injury or illness; and
(D) consultation referral to a local health care
provider for treating such injury or illness.
(b) Final Standard.--Not later than 3 years after the date of
enactment of this Act, the Secretary shall, pursuant to section 6 of
the Occupational Safety and Health Act of 1970 (29 U.S.C. 655), publish
in the Federal Register a final standard based on the proposed standard
under subsection (a).
SEC. 303. CORRECTION OF SERIOUS, WILLFUL, OR REPEATED VIOLATIONS
PENDING CONTEST AND PROCEDURES FOR A STAY.
(a) In General.--Section 10 of the Occupational Safety and Health
Act of 1970 (29 U.S.C. 659) is amended by adding at the end the
following:
``(d) Correction of Serious, Willful, or Repeated Violations
Pending Contest and Procedures for a Stay.--
``(1) Period permitted for correction of serious, willful,
or repeated violations.--For each violation which the Secretary
designates as serious, willful, or repeated, the period
permitted for the correction of the violation shall begin to
run upon receipt of the citation.
``(2) Filing of a motion of contest.--The filing of a
notice of contest by an employer shall not operate as a stay of
the period for correction of a violation designated as serious,
willful, or repeated.
``(3) Criteria and rules of procedure for stays.--
``(A) Motion for a stay.--An employer that receives
a citation alleging a violation designated as serious,
willful, or repeated and that files a notice of contest
to the citation asserting that the time set for
abatement of the alleged violation is unreasonable or
challenging the existence of the alleged violation may
file with the Commission a motion to stay the period
for the abatement of the violation.
``(B) Criteria.--In determining whether a stay
should be issued on the basis of a motion filed under
subparagraph (A), the Commission may grant a stay only
if the employer has demonstrated--
``(i) a substantial likelihood of success
on the areas contested under subparagraph (A);
and
``(ii) that a stay will not adversely
affect the health and safety of employees.
``(C) Rules of procedure.--The Commission shall
develop rules of procedure for conducting a hearing on
a motion filed under subparagraph (A) on an expedited
basis. At a minimum, such rules shall provide the
following:
``(i) That a hearing before an
administrative law judge shall occur not later
than 15 days following the filing of the motion
for a stay (unless extended at the request of
the employer), and shall provide for a decision
on the motion not later than 15 days following
the hearing (unless extended at the request of
the employer).
``(ii) That a decision of an administrative
law judge on a motion for stay is rendered on a
timely basis.
``(iii) That if a party is aggrieved by a
decision issued by an administrative law judge
regarding the stay, such party has the right to
file an objection with the Commission not later
than 5 days after receipt of the administrative
law judge's decision. Within 10 days after
receipt of the objection, a Commissioner, if a
quorum is seated pursuant to section 12(f),
shall decide whether to grant review of the
objection. If, within 10 days after receipt of
the objection, no decision is made on whether
to review the decision of the administrative
law judge, the Commission declines to review
such decision, or no quorum is seated, the
decision of the administrative law judge shall
become a final order of the Commission. If the
Commission grants review of the objection, the
Commission shall issue a decision regarding the
stay not later than 30 days after receipt of
the objection. If the Commission fails to issue
such decision within 30 days, the decision of
the administrative law judge shall become a
final order of the Commission.
``(iv) For notification to employees or
representatives of affected employees of
requests for such hearings, and to provide an
opportunity for affected employees or
representatives of affected employees to
participate as parties to such hearings.''.
(b) Conforming Amendments.--
(1) In general.--The Occupational Safety and Health Act of
1970 is amended--
(A) in the first sentence of section 10(b) (29
U.S.C. 659(b)), by inserting ``, with the exception of
violations designated as serious, willful, or
repeated,'' after ``(which period shall not begin to
run''; and
(B) in section 17 (29 U.S.C. 666) by striking
subsection (d) and inserting the following:
``(d) Any employer who fails to correct a violation designated by
the Secretary as serious, willful, or repeated and for which a citation
has been issued under section 9(a) within the period permitted for its
correction (and a stay has not been issued by the Commission under
section 10(d)) may be assessed a civil penalty of not more than $7,000
for each day during which such failure or violation continues. Any
employer who fails to correct any other violation for which a citation
has been issued under section 9(a) of this title within the period
permitted for its correction (which period shall not begin to run until
the date of the final order of the Commission in the case of any review
proceeding under section 10 initiated by the employer in good faith and
not solely for delay of avoidance of penalties) may be assessed a civil
penalty of not more than $7,000 for each day during which such failure
or violation continues.''.
(2) Adjustment under the federal civil penalties inflation
adjustment act of 1990.--
(A) Catch-up.--Not later than 1 year after the date
of enactment of this Act, the Secretary of Labor shall
adjust the maximum amounts described in subsection (d)
of section 17 of the Occupational Safety and Health Act
of 1970 (29 U.S.C. 666), as amended by paragraph
(1)(B), so that each such amount equals the maximum
amount of the civil penalty under such subsection (as
in effect on the day before such date of enactment) as
adjusted by section 4 of the Federal Civil Penalties
Inflation Adjustment Act of 1990 (28 U.S.C. 2461 note).
(B) Subsequent adjustments.--Subparagraph (A) and
the amendment made by this paragraph (1)(B) shall not
be construed to affect the application of the Federal
Civil Penalties Inflation Adjustment Act of 1990 (28
U.S.C. 2461 note) to the civil penalty amount under
section 17(d) of the Occupational Safety and Health Act
of 1970 (29 U.S.C. 666) for any adjustment under
section 4 of the Federal Civil Penalties Inflation
Adjustment Act of 1990 (28 U.S.C. 2461 note) after the
catch-up adjustment made by the Secretary of Labor
under subparagraph (A).
SEC. 304. DEFINITIONS.
For purposes of sections 301 and 302, the terms ``covered
employee'', ``covered employer'', ``covered facility'', and
``designated employee representative'' have the meanings given such
terms in section 8(a) of the Fair Labor Standards Act of 1938 (as added
by section 101).
TITLE IV--MISCELLANEOUS PROVISIONS
SEC. 401. SEVERABILITY.
If any provision of this Act (including an amendment made by this
Act) or the application of such provision to any person, entity,
government, or circumstance, is held to be unconstitutional, the
remainder of this Act (including the amendments made by this Act), or
the application of such provision to all other persons, entities,
governments, or circumstances, shall not be affected thereby.
SEC. 402. PREEMPTION.
(a) Interaction With Other Laws.--Nothing in this Act (including
the amendments made by this Act) or the regulations promulgated under
this Act shall be construed to supersede or preempt any law or
ordinance of a State, or political subdivision of a State, that
requires limitations on any quota for a covered employee of a covered
employer that are comparable to or greater than the protections
provided in this Act.
(b) Collective Bargaining Agreements.--Nothing in this Act
(including the amendments made by this Act) or the regulations
promulgated under this Act shall be construed to supersede or preempt
employment terms or conditions agreed upon in collective bargaining
agreements that are more beneficial to a covered employee.
(c) OSHA.--No action by the Director under this Act (including the
amendments made by this Act) shall be construed as an exercise of
statutory authority within the meaning of section 4(b)(1) of the
Occupational Safety and Health Act of 1970 (29 U.S.C. 653(b)(1)).
(d) Definitions.--For purposes of this section, the terms
``Director'', ``covered employee'', ``covered employer'', ``designated
employee representative'', and ``quota'' have the meanings given such
terms in section 8(a) of the Fair Labor Standards Act of 1938 (as added
by section 101).
SEC. 403. AUTHORIZATION OF APPROPRIATIONS.
There is authorized to be appropriated to carry out this Act such
sums as may be necessary for each of the fiscal years 2025 through
2035.
<all>
Introduced in Senate
Read twice and referred to the Committee on Health, Education, Labor, and Pensions.
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