The 12 Days of the California Labor & Employment Series – Day 11: Beware of Adverse Employment Actions Involving Warehouse Distribution Center Quotas | Hinshaw & Culbertson – Labor Law Observer


In the spirit of the season, we use our annual “12 Days Vacation” blogging series to discuss new California laws and their impact on California employers. On this eleventh day of vacation, my labor lawyer gave me: eleven pipers and AB 701.

Who saw the holiday movie “Elf”? In the movie, Will Ferrell plays Buddy the Elf. When Buddy is working at Santa’s Workshop, he is seen building the Etch a Sketch. His supervisor walks up and Buddy says, “Ming Ming, I’m going to be a little under today’s quota.” Buddy informs Ming Ming that he did 85 Etch a Sketches that day and is then told that he is 915 pieces behind. In the next scene, Buddy the Elf is no longer doing Etch a Sketch. Instead, it checks to see if the Jack in the Box toys are working properly. A demotion? Unfavorable action for employment? May be. This is, in essence, what AB 701 addresses.

California is often at the forefront of employee protection, and AB 701 is no different. The AB 701 is the first of its kind and is designed to provide additional protections for workers in warehouse processing and distribution centers. Many of these facilities have mandatory quotas that employees must meet or face repercussions. With the pandemic, a massive increase in deliveries ensued. Almost everyone had groceries, cleaning supplies, basic necessities, entertainment items, and just about anything that was delivered to their homes. Warehouse distribution centers and distribution centers were overloaded with demand. Employees were working around the clock and the number of employees in this industry has increased significantly. AB 701 infers that warehouse worker quotas increased during this period without employees receiving any increase in wages or time allocated to employees to do their jobs safely or to take meals and periods. rest required. AB 701 deals with how an employer who uses quotas should act and what rights these employees have.

While the use of quotas is not required, some warehouses require employees to meet quotas within a specified time frame or may face adverse employment actions, including, but not limited to , dismissal for non-compliance with this obligation. With the stress of quotas, employees can put their own well-being, or that of others, at risk in order to meet their quotas. The AB 701 is designed to minimize these problems. It defines “employee work speed data” to mean information that an employer collects, stores, analyzes or interprets regarding the performance of an individual employee 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, measures or measures of employee performance against a quota and time classified as performing or not stain. It does not include performance reviews, personnel records or detailed statements. AB 701 further 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 time frame under which the employee may experience adverse employment action if he fails to meet the performance standard.

Does AB 701 apply to you?

AB 701 applies to non-exempt employees who work in a warehouse distribution center. A qualified employer means an employer who directly or indirectly employs or exercises control over the wages of 100 or more employees in a single warehouse distribution center or of 1,000 or more employees in one or more of the warehouse distribution centers. warehouse in the State of California. AB 701 further defines a warehouse distribution center as an establishment as defined by the following North American Industry Classification System (NAICS) codes:

  • 493110 Warehousing and general storage
  • 423 wholesalers, durable goods
  • 424 wholesalers, non-durable goods
  • 454110 Electronic shopping and mail order houses

AB 701 specifically excludes 493130, Warehousing and warehousing of agricultural products.

What Should a Qualified Warehouse Distribution Center Do?

  1. At the time of hiring, or within 30 days of the effective date of January 1, 2022, the employer must provide a written description of each quota to which the employee is subject, including the quantified number of tasks to be carried out or from materials to produced or handled, within the defined period, and any potential negative action in terms of employment which could result from non-compliance with the quota.
  2. An employer must not take adverse employment action against an employee for breaching a quota that does not allow a worker to comply with meal and rest periods, or health and safety laws and occupational safety in the Labor Code or division standards, or for failure to meet a quota that has not been disclosed to the employee.
  3. If an employer receives a written or oral request from a current or former employee for a written description of the quotas to which he was subject or for a copy of his own personal working speed data, he must comply with the request as soon as possible. , but no later than 21 calendar days from the date of the request.
  4. An employer is not required to use quotas or monitor work speed data. An employer who does not control this data has no obligation to provide this information to a current or former employee.
  5. The employer has the right to remedy alleged violations that may be brought under the Private Attorneys General Act of the Labor Code 2004 (PAGA) by a current or former employee.

What rights are available for a warehouse worker?

  1. An employee will not be required to meet a quota that impedes compliance with meal or rest periods, the use of the washroom, including reasonable travel time to and from the washroom, or health and safety laws. at work in the Labor Code or the standards of the division.
  2. If a current or former employee believes that meeting a quota has caused a violation of their right to a meal or a period of rest or forced them to violate the occupational health and safety laws of the Labor Code. work or division standards he has the right to request, and the employer must provide a written description of each quota to which the employee is subject and a copy of the most recent 90 days of personal work speed data of the employee.
  3. If a former employee requests a written description of the quotas to which they were subject and a copy of their own personal work speed data, the employer must provide 90 days of the former employee’s quotas and personal work speed data for the 90 days preceding the date of separation of the employee from the employer.
  4. A former employee is limited to one application under this subsection.
  5. A current or former employee can sue for an injunction to obtain compliance and may, once the action is won, recover reasonable costs and attorneys’ fees for that action. In any action involving a quota which has prevented compliance with regulations promulgated by the Occupational Safety and Health Standards Council, the injunction will be limited to the suspension of the quota and any adverse action resulting from its application.

AB 701 also provides that there is a rebuttable presumption of unlawful retaliation if an employer discriminates, retaliates or takes adverse action against an employee within 90 days of an employee initiating a complaint. first request for information on a quota in a calendar year. or personal data on work speed or file a complaint about a quota alleging a violation to the commissioner, division or other local or state government agency.

In addition, the attorney general, a district attorney or a city attorney, either on their own complaint or on the complaint of any person acting for himself or the general public, has the capacity to pursue actions, civil or criminal, for violations of this part, or to enforce its provisions independently and without special instruction from the commissioner or the division. They can also request or subpoena records from the warehouse fulfillment center.

AB 701 also specifies that the Commissioner of Labor is to work with the Department of Industrial Relations, Cal / OSHA and the Workers’ Compensation Division to monitor data regarding injuries reported by the employer. The Labor Commissioner will also report by January 1, 2023, the number of complaints filed with the Commission under this section and assess whether a warehouse distribution center has an injury rate above the average for the year. ‘industry. If a warehouse distribution center has an employee injury rate 1.5 times the average, Cal / OSHA or the Division of Workers’ Compensation should notify the Labor Board to determine if an investigation is necessary.

Best practices

Qualified warehouse distribution centers must delineate each of their quotas detailing the quantified number of tasks to which the employee is subjected or the materials to be produced or handled within a defined period of time. In conjunction with quota definitions, qualified warehouse distribution centers must also have in writing any adverse employment actions, if any, to which employees are subject for non-compliance with quotas. Respect for meal and rest periods is also essential. If a former or current employee makes a request for information authorized by AB 701, employers must ensure a prompt response to those requests. It is also recommended that these employers take safety measures and washroom breaks into consideration when setting their quotas. To be realistic. Failure to do so may result in legal action.