AN ACT Relating to protecting employees of warehouses; adding a new chapter to Title 49 RCW; prescribing penalties; and providing an effective date.

(1) "Affiliate" means a person that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with another person. For purposes of this subsection, "control" means the possession, directly or indirectly, of more than 50 percent of the power to direct or cause the direction of the management and policies of a person, whether through the ownership of voting shares, by contract, or otherwise.

(2) "Aggregated data" means information that an employer has combined or collected in summary or other form such that the data cannot be identified with any individual.

(3) "Defined time period" means any unit of time measurement equal to or less than the duration of an employee's shift, and includes hours, minutes, and seconds and any fraction thereof.

(5) "Designated employee representative" means any employee representative, including but not limited to an authorized employee representative that has a collective bargaining relationship with the employer.

(8)(a) "Employee work speed data" means information an employer collects, stores, analyzes, or interprets relating to an individual employee's performance of a quota including, but not limited to, quantities of tasks performed, quantities of items or materials handled or produced, rates or speeds of tasks performed, measurements or metrics of employee performance in relation to a quota, and time categorized as performing tasks or not performing tasks.

(b) Employee work speed data does not include qualitative performance assessments, personnel records, or itemized wage statements pursuant to department rules, except for any content of those records that includes employee work speed data as defined in this subsection.

(9)(a) "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, or staffing agency, independent contractor, or any similar entity, at any time, employs or exercises control over the wages, hours, or working conditions of 100 or more employees at a single warehouse distribution center in the state or 500 or more employees at one or more warehouse distribution centers in the state.

(b) For the purposes of determining the number of employees employed at a single warehouse distribution center or at one or more warehouse distribution centers, all employees employed directly or indirectly, or through an agency or any other person, and all employees employed by an employer and its affiliates, must be counted.

(c) For the purposes of determining responsible employers, all agents or other persons, and affiliates must be deemed employers and are jointly and severally responsible for compliance with this chapter.

(10) "Person" means an individual, corporation, partnership, limited partnership, limited liability partnership, limited liability company, business trust, estate, trust, association, joint venture, agency, instrumentality, or any other legal or commercial entity, whether domestic or foreign.

(11) "Quota" means a work performance standard, whether required or recommended, where: (a) An employee is assigned or required to perform at a specified productivity speed, or perform a quantified number of tasks, or to handle or produce a quantified amount of material, within a defined time period and under which the employee may suffer an adverse employment action if they fail to complete the performance standard; or (b) an employee's actions are categorized between time performing tasks and not performing tasks, if the employee may suffer an adverse employment action if they fail to meet the performance standard.

(12) "Warehouse distribution center" means an establishment as defined by any of the following North American industry classification system codes, however such establishment is denominated:

NEW SECTION. Sec. 2. (1) An employer must provide to each employee, upon hire, or within 30 days of the effective date of this section, a written description of:

(a) Each 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) Whenever there is a change to the quota that results in a different quota than the most recent written description provided to the employee, the employer must: (a) Notify the employee verbally or in writing as soon as possible and before the employee is subject to the new quota; and (b) provide the employee with an updated written description of each quota to which the employee is subject within two business days of the quota change.

(3) Whenever an employer takes an adverse action against an employee in whole or in part for failure to meet a quota, the employer must provide that employee with the applicable quota for the employee and the personal work speed data for the employee that was the basis for the adverse action.

(4) The written description must be understandable, in plain language, and in the employee's preferred language. The department may adopt rules regarding the format, plain language, and language access requirements for the written description.

NEW SECTION. Sec. 3. (1) The time period considered in a quota, including time designated as productive time or time on task must include:

(b) 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 on the premises or at a prescribed worksite in the interest of the employer;

(e) Time to take any actions necessary for the employee to exercise the employee's right to a safe and healthful workplace pursuant to chapter 49.17 RCW, including but not limited to time to access tools or safety equipment necessary to perform the employee's duties.

(2) Reasonable travel time must include consideration of the architecture and geography of the facility and the location within the facility that the employee is located at the time.

(3) An employer may not take adverse action against an employee for failing to meet a quota that violates this section or that was not disclosed to the employee as required under section 2 of this act.

(b) Prevents the performance of any activity related to occupational safety and health required by the employer for the employee to do the work subject to any quota; or

(c) Exposes an employee to occupational safety and health hazards in violation of the requirements of chapter 49.17 RCW and the applicable rules or regulations.

(4) All provisions of section 8 of this act apply to any person who complains to the employer, the director, or any local, state, or federal governmental agency or official, related to a quota alleging any violations of this section.

(5) This section must be implemented and enforced, including penalties, violations, citations, and other administrative procedures, pursuant to chapter 49.17 RCW.

NEW SECTION. Sec. 6. (1) An employer must establish, maintain, and preserve contemporaneous, true, and accurate records of the following:

(2)(a) The required records must be maintained and preserved throughout the duration of each employee's period of employment and for the period required by this subsection.

(b) Except as required under (c) of this subsection, subsequent to an employee's separation from the employer, records relating to the six-month period prior to the date of the employee's separation from the employer must be preserved for at least three years from the date of the employee's separation.

(c) Where an employer has taken adverse action against an employee in whole or in part for failure to meet a quota, the employer must preserve the records relating to the basis for the adverse action for at least three years from the date of the adverse action.

(3) Nothing in this section requires an employer to collect or keep such records if the employer does not use quotas or monitor work speed data.

(4) An employer who fails to allow adequate inspection of records in an inspection by the department within a reasonable time period may not use such records in any appeal to challenge the correctness of any citation and notice issued by the department.

NEW SECTION. Sec. 7. (1) An employee has the right to request, at any time, a written description of each quota to which the employee is subject, a copy of the employee's own personal work speed data for the prior six months, and a copy of the prior six months of aggregated work speed data for similar employees at the same warehouse distribution center.

(2) A former employee has the right to request, within three years subsequent to the date of their separation from the employer, a written description of the quota to which they were subject as of the date of their separation, a copy of the employee's own personal work speed data for the six months prior to their date of separation, and a copy of aggregated work speed data for similar employees at the same warehouse distribution center for the six months prior to their date of separation.

(a) Requested records of written descriptions of a quota must be provided no later than two business days following the date of the receipt of the request; and

(b) Requested personal work speed data and aggregated work speed data must be provided no later than seven business days following the date of the receipt of the request.

(5) Nothing in this section requires an employer to use quotas or monitor work speed data. An employer that does not use quotas or monitor work speed data has no obligation to provide records under this section.

NEW SECTION. Sec. 8. (1) A person, including but not limited to an employer, his or her agent, or person acting as or on behalf of a hiring entity, or the officer or agent of any entity, business, corporation, partnership, or limited liability company, may not discharge or in any way retaliate, discriminate, or take adverse action against an employee or former employee for exercising any rights established in this chapter, or for being perceived as exercising rights established in this chapter including, but not limited to:

(b) Making a complaint to the employer, the director, or any local, state, or federal governmental agency or official, related to a quota that is allegedly in violation of this chapter or chapter 49.17 RCW.

(2) An employee or former employee need not explicitly refer to this section or the rights established in this chapter to be protected from an adverse action. The protection provided in this section applies to former employees and to employees who mistakenly but in good faith allege violations of this chapter.

(3)(a) If a person takes adverse action against an employee or former employee within 90 days of the employee engaging or attempting to engage in activities protected by this chapter, there is a rebuttable presumption that the adverse action is a retaliatory action in violation of this section.

(b) The presumption may be rebutted by clear and convincing evidence that: (i) The action was taken for other permissible reasons; and (ii) the engaging or attempting to engage in activities protected by this chapter was not a motivating factor in the adverse action.

(4) Except as provided for in section 5 of this act, the department must carry out and enforce the provisions of this section and section 4 of this act pursuant to procedures established under chapter 49.46 RCW and any applicable rules. The department may adopt new rules to implement or enforce this subsection.

NEW SECTION. Sec. 9. (1)(a) An employee may file a complaint with the department alleging a violation under this chapter or applicable rules, except for violations and enforcement of sections 5 and 8 of this act. The department must investigate the complaint.

(b) The department may not investigate any such alleged violation of rights that occurred more than three years before the date that the employee filed the complaint.

(c) If an employee files a timely complaint with the department, the department must investigate the complaint and issue either a citation and notice of assessment or a closure letter within 90 days after the date on which the department received the complaint, unless the complaint is otherwise resolved. The department may extend the period by providing advance written notice to the employee and the employer setting forth good cause for an extension of the period and specifying the duration of the extension.

(d) The department must send the citation and notice of assessment or the closure letter to both the employer and the employee by service of process or using a method by which the mailing can be tracked or the delivery can be confirmed to their last known addresses.

(2) If the department's investigation finds that the employee's allegation cannot be substantiated, the department must issue a closure letter to the employee and the employer detailing such finding.

(4) For complaints filed under this section, an employer who is found to have violated a requirement of this chapter and the rules adopted under this chapter, is subject to a civil penalty of not less than $1,000 for each violation. Civil penalties must be collected by the department and deposited into the supplemental pension fund established under RCW 51.44.033.

(5) Except as provided under subsection (1) of this section, an employer who is found to have violated a requirement of this chapter and the rules adopted under this chapter resulting in a rest or meal period violation, must pay the employee one additional hour of pay at the employee's regular rate of pay for each day there is a violation.

(7) For enforcement actions under this section, if any person fails to pay an assessment under this chapter, or under any rule under this chapter, after it has become a final and unappealable order, or after the court has entered final judgment in favor of the agency, the director may initiate collection procedures in accordance with the collection procedures under RCW 49.48.086.

NEW SECTION. Sec. 10. (1) For enforcement actions under section 9 of this act, a person, firm, or corporation aggrieved by a citation and notice of assessment by the department or any rules adopted under this chapter may appeal the citation and notice of assessment to the director by filing a notice of appeal with the director within 30 days of the department's issuance of the citation and notice of assessment. A citation and notice of assessment not appealed within 30 days is final and binding, and not subject to further appeal.

(2) A notice of appeal filed with the director under this section stays the effectiveness of the citation and notice of assessment pending final review of the appeal by the director as provided in chapter 34.05 RCW.

(3) Upon receipt of a notice of appeal, the director must assign the hearing to an administrative law judge of the office of administrative hearings to conduct the hearing and issue an initial order. The hearing and review procedures must be conducted in accordance with chapter 34.05 RCW, and the standard of review by the administrative law judge of an appealed citation and notice of assessment must be de novo. Any party who seeks to challenge an initial order must file a petition for administrative review with the director within 30 days after service of the initial order. The director must conduct an administrative review in accordance with chapter 34.05 RCW.

(4) The director must issue all final orders after appeal of the initial order. The final order of the director is subject to judicial review in accordance with chapter 34.05 RCW.

(5) Orders that are not appealed within the time period specified in this section and chapter 34.05 RCW are final and binding, and not subject to further appeal.

(6) An employer who fails to allow adequate inspection of records in an investigation by the department under this chapter within a reasonable time period may not use such records in any appeal under this section to challenge the correctness of any determination by the department of the penalty assessed.

NEW SECTION. Sec. 11. An employee or former employee or designated employee representative may bring an action for injunctive relief to obtain compliance with this chapter, except for provisions of this chapter pertaining to violations of chapter 49.17 RCW. Upon prevailing in the action, the employee or former employee or designated employee representative may recover costs and reasonable attorneys' fees.

(1) In any action involving a quota that is deemed a violation under section 4 of this act, injunctive relief is limited to suspension of the quota and restitution and injunctive relief to address any retaliation or other adverse action taken by the employer in relation to the complaint or its enforcement.

(2) In any action alleging retaliation, in addition to the injunctive relief authorized above, the prevailing employee or former employee or the representative must be awarded damages equal to the greater of $10,000 or three times the actual damages, including but not limited to unpaid wages and benefits.

NEW SECTION. Sec. 12. The attorney general, either upon the attorney general's own complaint or the complaint of any person acting for themselves or the general public, may bring a civil or criminal action for violations of this chapter, except for provisions of this chapter pertaining to violations of chapter 49.17 RCW, or to enforce this chapter, independently and without specific direction of the director.

NEW SECTION. Sec. 14. If any provision of this act or its application to any person or circumstance is held invalid, the remainder of the act or the application of the provision to other persons or circumstances is not affected.