California's Limitations on Warehouse Worker Production Quotas

As a possible first step toward such limitations across other California industries, Assembly Bill (AB) 701 places specific conditions on warehouse distribution center imposition of worker production quotas, effective January 1, 2022.

New Labor Code 2100 defines "warehouse distribution centers" as general warehousing and storage, merchant wholesalers of durable and non-durable goods, and electronic shopping and mail-order houses (but not farm product warehousing and storage), which have 100+ employees in one location or 1,000+ employees throughout the state.

Among other particulars, such employers must now ensure that:

• No quota prevents an employee from taking legally-required meal and rest breaks or bathroom breaks, including time to and from the bathroom, or occupational health and safety actions (Labor Code 2101);
• Management does not take adverse action for failure to meet quotas that do not allow sufficient time for such breaks;
• If an employee takes time to address a workplace health and safety issue, management must treat it as "time on task and productive time for purposes of any quota or monitoring system" (Labor Code 2103); and
• Upon request, management provides an employee with "a written description of each quota to which the employee is subject and a copy of the most recent 90 days of the employee's own personal work speed data." Management must also provide a former employee the same data for 90 days prior to separation. In either case, the data must be provided "as soon as practicable," but no more than 21 days from the request (Labor Code 2104).

Any adverse action an employer takes within 90 days of an employee's first quota information request or of any complaint "related to a quota" will raise a rebuttable presumption of retaliation (Labor Code 2105).

The Labor Commissioner's recently published FAQs directs that by January 31, 2022 all covered employers must give each applicable employee "a written description of each quota the employee works under. This includes the number of tasks to be performed or materials that must be produced or handled within a time period, and any potential adverse employment action that could result from failing to meet the quota."

Take-Away:

• While these remarkably specific conditions for valid quota systems only apply to covered warehouse distribution centers, employers in other quota-using industries should keep an eye out for expansion of such government initiatives.

For further information, please contact Tim Bowles, Cindy Bamforth or Helena Kobrin.

See also:

• Find Out What's New In 2022 - Enlightenment Is Good For You: Annual Seminar for Employers
• Words Change Worlds: Workplace Policy Handbook & Forms for 2022
• Please: Document Workplace Meal Breaks: Require Employees to Clock Out and Back In on Their Meals (June 4, 2021)

Helena Kobrin
January 28, 2022