Revision: March 3, 2022, 10:16 a.m.
Rep. Infantine, Hills. 13
February 9, 2022
2022-0630h
04/10
Amendment to HB 1076
Amend the bill by replacing all after the enacting clause with the following:
1 New Subdivision; Productivity Quotas. Amend RSA 275 by inserting after section 77 the following new subdivision:
Productivity Quotas
275:78 Definitions. In this subdivision:
I. “Commissioner” means the labor commissioner.
II. “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.
III. “Department” means the department of labor.
IV. “Employee” means an employee who works at a warehouse distribution center.
V. “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. “Employee work speed data” shall not include qualitative performance assessments, personnel records, or itemized wage statements, except for any content of those records that includes employee work speed data as defined in this subdivision.
VI. “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 service, or staffing agency or similar entity, employs or exercises control over the wages, hours, or working conditions of 100 or more employees at a single warehouse distribution center or 1,000 or more employees at one or more warehouse distribution centers in the state.
VII. “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.
VIII. “Quota” means a work standard under which 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.
IX.(a) “Warehouse distribution center” means an establishment as defined by any of the following North American Industry Classification System (NAICS) Codes, however that establishment is denominated, and may include the following:
(1) 493110 for General Warehousing and Storage.
(2) 423 for Merchant Wholesalers, Durable Goods.
(3) 424 for Merchant Wholesalers, Nondurable Goods.
(4) 454110 for Electronic Shopping and Mail-Order Houses.
(b) The term “warehouse distribution center” shall not include NAICS Code 493130, Farm Product Warehousing and Storage.
275:79 Employer Disclosure of Productivity Quotas. Each employer shall provide to each prospective employee, a written description of 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 the defined time period, and any potential adverse employment action that could result from failure to meet the quota
275:80 Productivity Quotas. An employee shall not be required to meet a quota that prevents compliance with meal or rest periods, use of bathroom facilities, including reasonable travel time to and from bathroom facilities, or occupational health and safety laws in state law or department rules. An employer shall not take adverse employment action against an employee for failure to meet a quota that does not allow a worker to comply with meal and rest periods, or occupational health and safety laws in state law or department rules, or for failure to meet a quota that has not been disclosed to the employee pursuant to RSA 275:79.
275:81 Productive Time. Any action taken by an employee to comply with occupational health and safety laws shall be considered time on task and productive time for purposes of any quota or monitoring system. Meal and rest breaks shall not be considered productive time unless the employee is required to remain on call.
275:82 Right to Request Quota Description. If a current employee believes that meeting a quota caused a violation of their right to a meal or rest period or required them to violate any occupational health and safety laws in state law or department rules, then such employee shall have the right to contact the department of labor and submit a complaint pursuant to RSA 275:80. An employer that does not monitor this data shall have no obligation to provide it.
275:83 Duties of the Commissioner. The commissioner shall:
I. Enforce this subdivision by engaging in coordinated and strategic enforcement efforts with the department. The commissioner shall have access to data from the department including employer-reported injury data and enforcement actions in warehouses.
II. Adopt rules pursuant to RSA 541-A relating to the procedures for an employee to make a complaint alleging a violation of this subdivision.
275:84 Employer Right to Cure. In any action by a current employee that could be brought for a violation of this subdivision, the employer shall have the right to a reasonable amount of time to cure an alleged violation.
2 Effective Date. This act shall take effect January 1, 2023.