Washington warehouse quota rules released – Technologist

Washington’s Department of Labor and Industries (L&I) adopted two sets of rules (WAC 296-35 and WAC 296-136) to enforce the new warehouse employee quota statute (RCW 49.84), all of which go into effect July 1, 2024. One set of rules addresses safety standards and the other addresses labor standards. Our reporting on the new law covers the major requirements, but the rules deal with the following important issues:

Definitions: Most terms in the rule mirror the law, but “adverse action” and “affiliate” are used throughout the statute and aren’t defined. Adverse action, an important term because it triggers the need to provide quota and personal work speed data, is defined broadly in the rules and includes changing the employee’s work schedule, reducing their pay, preventing future job opportunities, or suspending, demoting, or terminating the employee. The term affiliate is also important because individuals employed as or with an affiliate of an employer count for purposes of determining coverage under the law. An affiliate is broadly defined to include any person or entity that controls more than 50 percent of the power to direct the management policies of the individual or entity. For example, if two corporations have a common owner with more than 50 percent of the ownership of each entity, they will all be affiliates for purposes of counting the number of employees.

Providing information in employee’s preferred language: The rules give employers 15 calendar days to provide the quota and personal work speed data that was the basis for an adverse action when the employee requests them in their preferred language. Additionally, all future written descriptions mandated by the law must be provided in the employee’s preferred language.

Employer size determination: The number of employees for determining employer size, and therefore coverage under the law, will be the greater of the number of employees on the date of the alleged violation or the average number of employees over the previous 12 months. For businesses operating for less than 12 months, the size will be the maximum number of employees since it was in business.

Employee and former employee access to information: Employees must be given a written description of each quota they’re subject to within two business days of the request, and their personal speed data and aggregated speed data for similar employees at the same distribution center in the last six months within seven business days of the request. Former employees can also ask for this information for the six months prior to their separation at any time within three years of the separation, and the same turnaround times apply to these requests.

Examples of tools and equipment and safety and health activities or hazards: The law makes it illegal to have a quota that prevents an employee from accessing tools and equipment, engaging in a safety and health activity, or addressing a safety and health hazard. The rules contain examples of tools and equipment such as carts and hand trucks, stools and ladders, safety shoes, and high visibility vests. Examples of safety or health activities are cleaning up spills or removing obstacles, inspecting equipment, setting up ladders, and waiting for help with team lifting. Examples of safety and health hazards that employees need time to address are heat stress risks, unsafe floor conditions, lockout tagout, and ergonomic hazards.

Sweeping investigatory power: L&I has granted itself broad authority to investigate employers if it has reason to believe the rules have been violated, even if no complaint was filed. The rules also allow L&I to look into violations of any other laws it enforces at the same time as it investigates a warehouse quota issue and to require employers to self-audit their records related to the warehouse quota law.

Pay penalties for meal and rest period violations: If L&I determines that a violation of the warehouse quota rule has also resulted in meal and rest period violations, the employer must pay each affected employee one additional hour of pay at the employee’s regular rate for each day there is a violation. This is in addition to any other penalties L&I might levy via the warehouse quota statute.

Tips: If you operate a warehouse distribution center, be sure to review our original article to see whether this law applies to your operation and the major requirements. If you’re covered, prepare to comply with the notification and recordkeeping requirements that take effect on July 1, 2024. We’ll also be updating our resources in the weeks ahead to reflect these new rules. Questions? Contact your Vigilant Law Group employment attorney.