Definitions

(a) Definitions In this section: (1) Adverse employment action The term adverse employment action, with respect to a covered employee, means a change by the covered employer of the covered employee in the compensation, terms, conditions, or privileges of the job of the covered employee that, from the perspective of a reasonable person, puts the covered employee in a materially adverse position than prior to the change, including termination, a reduction in benefits, disciplinary action, demotion, promotion, transfer, imposition of a work schedule more burdensome to the covered employee, reduction of scheduled hours, adjustment in ability for promotion, or other modifications to compensation, terms, conditions, or privileges of employment. (2) Aggregated work speed data The term aggregated work speed data means employee work speed data that a covered employer has combined, or collected together, in a summary or other form so that the employee work speed data cannot, at any point, be identified or linked with any specific covered employee. (3) Commerce The terms commerce, goods, enterprise, enterprise engaged in commerce or in the production of goods for commerce have the meanings given such terms in section 3 of the Fair Labor Standards Act of 1938 (29 U.S.C. 203). (4) Covered facility The term covered facility means any warehouse distribution center described in the North American Industry Classification System code— (A) 493, for warehousing and storage; (B) 423, for merchant wholesalers, durable goods; (C) 424, for merchant wholesalers, nondurable goods; (D) 454110, for electronic shopping and mail-order houses; or (E) 492110, for couriers and express delivery services. (5) Covered employee The term covered employee means an employee who— (A) is employed by an employer for the performance of work at a covered facility; and (B) is subject to a quota while performing work at such covered facility. (6) Covered employer (A) In general The term covered employer means an employer that— (i) is engaged in commerce, in the production of goods for commerce, or in an enterprise engaged in commerce or in the production of goods for commerce, including such an employer that is a contractor, subcontractor, temporary service firm, staffing agency, independent contractor, employee leasing entity, or similar entity; (ii) employs a covered employee for the performance of work at a covered facility; and (iii) employs more than a total of 200 employees (including on a full- or part-time basis) for the performance of work at all covered facilities owned or operated by the employer. (B) Rule of construction For purposes of determining the number of employees under subparagraph (A)(iii), the total number of employees employed for the performance of work as described in such subparagraph shall include all employees of any affiliate of the employer (as determined in accordance with section 121.103 of title 13, Code of Federal Regulations, as in effect on the date of enactment of this Act). (7) Defined time period The term defined time period means any unit of time measurement equal to or less than one day, including hours, minutes, and seconds and any fraction thereof. (8) Designated employee representative The term designated employee representative means any representative designated by a covered employee, including an employee representative that has a collective bargaining relationship with the covered employer of the covered employee. (9) Director The term Director means the Director of the Fairness and Transparency Office established by section 5 of the Fair Labor Standards Act of 1938. (10) Egregious misconduct The term egregious misconduct, with respect to a covered employee, means deliberate or grossly negligent conduct that endangers the safety or well-being of the covered employee, co-workers of the covered employer, customers, or other persons, including discrimination against or harassment of co-workers, customers, or other persons. (11) Employ; employee; employer The terms employ; employee; and employer have the meanings given such terms in section 3 of the Fair Labor Standards Act of 1938 (29 U.S.C. 203). (12) Employee work speed data The term employee work speed data means information a covered employer collects, stores, analyzes, or interprets relating to the performance of work by a covered employee of the covered employer for a quota, including information with respect to the— (A) quantities of tasks performed by the covered employee; (B) quantities of items or materials handled or produced by the covered employee; (C) rates or speeds of tasks performed by the covered employee; (D) measurements or metrics of covered employee performance in relation to a quota; or (E) time categorized with respect to the covered employee as performing tasks or not performing tasks. (13) Quota The term quota means an express or implied performance standard or performance target, including such a standard or target used to rank or compare an employee in relation to the performance of another employee or in relation to the past performance of the employee, under which— (A) (i) an employee is actually or effectively assigned, required, or expected within a defined time period (with or without any reasonable accommodation provided under Federal, State, or local law) to— (I) perform— (aa) a quantified number of tasks; or (bb) at a specified productivity speed; or (II) handle or produce a quantified amount of material without a certain number of errors or defects; and (ii) such assignment, requirement, or expectation is measured at the individual or group level for such defined time period; (B) actions by an employee are categorized and measured between time performing tasks and not performing tasks within a defined time period; or (C) increments of time of a defined time period during which an employee is or is not doing a particular activity are measured, recorded, or tallied. (14) Similarly situated covered employee The term similarly situated covered employee, with respect to a covered employee, means another covered employee who holds the same job or responsibilities as the covered employee. (15) Tribal government The term Tribal government means the recognized governing body of an Indian Tribe. (16) Workplace surveillance The term workplace surveillance means any employer surveillance (on- or off-duty) with respect to an employee, including the detection, monitoring, interception, collection, exploitation, preservation, protection, transmission, or retention of data concerning activities or communications with respect to the employee, including through the use of a product or service marketed, or that can be used, for such purposes, such as a computer, telephone, wire, radio, camera, sensor, electromagnetic, photoelectronic, handheld or wearable device, or photo-optical system. (17) Work station The term work station means the area of a covered facility within which a covered employee is assigned to perform tasks for the longest duration of time during a day. (b) Communication with covered employees regarding quotas and workplace surveillance (1) In general On the later of the date a covered employee is hired by a covered employer or 180 days after the date of enactment of this section, each covered employer shall provide to each covered employee of the covered employer— (A) a written description of each quota to which the covered employee is subject, including— (i) as applicable, the quantified number of tasks to be performed or of materials to be produced or handled, or other performance measure, within the defined time period, for the quota; (ii) any potential discipline or adverse employment action that could result from failure to meet the quota; (iii) how performance targets or performance standards for the quota are calculated; (iv) whether there is any incentive or bonus program associated with meeting or exceeding the quota and, if applicable, how the incentive or bonus program operates; and (v) how the quota is monitored, including a description of— (I) what employee work speed data are being collected; (II) how the employee work speed data are being collected, including a description of any workplace surveillance technology used on the covered employee by the covered employer; (III) where and when the employee work speed data are being collected; (IV) the frequency of the collection; (V) where the storage of the employee work speed data is located; (VI) the business purposes for which the employee work speed data are being used; and (VII) as applicable, the identity of any third party— (aa) used for such workplace surveillance; (bb) to which data from such workplace surveillance is transferred; and (cc) from which data of the covered individual is or may be purchased or acquired; and (B) a written description of and training with respect to how the covered employee may file a complaint regarding a violation of this section or a standard promulgated under title III of this Act. (2) Changes to quota or workplace surveillance Each covered employer shall provide to any applicable covered employee an updated written description of any information provided under paragraph (1) not less than 2 business days before any changes with respect to such information are made. (3) Requirements for taking an adverse employment action on quota compliance (A) In general A covered employer that takes an adverse employment action against a covered employee for work performance that does not meet requirements with respect to a quota shall provide— (i) a written explanation to the covered employee regarding the manner in which the covered employee failed to perform, including a description of the applicable quota and a comparison of such work performance to such quota; and (ii) if the adverse employment action was based on employee work speed data, a copy of the employee work speed data in a human-readable format that a reasonable individual can understand. (B) Notice for actions unrelated to quota A covered employer that, with respect to any covered employee who is subject to a quota, takes an adverse employment action against such covered employee for any reason that is unrelated to compliance with the quota shall provide to such covered employee a written confirmation that such action was unrelated to compliance with the quota. (4) Termination (A) In general A covered employer that seeks to terminate a covered employee shall, regardless of whether the termination relates to work performance with respect to a quota, provide to the covered employee a written notice of the intent to terminate the covered employee. (B) Egregious misconduct Notwithstanding subparagraph (A), a covered employer may terminate a covered employee without providing such written notice if the covered employee engaged in egregious misconduct. (5) Descriptions Each covered employer shall— (A) provide any written description, notice, explanation, or confirmation described in paragraph (1), (2), (3), or (4) to a covered employee— (i) through a human representative of the covered employer at the work station of the covered employee; and (ii) in a manner required by the Director that— (I) is accessible; (II) allows the covered employee to transport the data in the description, notice, explanation, or confirmation without hindrance; (III) is in plain language; and (IV) is in the primary language of the covered employee; and (B) make such description, notice, explanation, or confirmation available to the covered employee electronically. (c) Protection from quotas (1) Prohibited quotas A covered employer may not require any quota for a covered employee that would— (A) prevent— (i) compliance with any required meal or rest period or any other break required by Federal, State, or local law; (ii) compliance with health and safety provisions required by Federal, State, or local law; (iii) the use by the covered employee of bathroom facilities, including reasonable travel time to and from bathroom facilities that takes into account the architecture of the covered facility; or (iv) compliance with a covered employee’s right to reasonable accommodations or nondiscrimination as required by Federal, State, or local law; (B) set a performance target or performance standard that measures total output for the covered employee over an increment of time that is shorter than one day; (C) measure and evaluate the output or performance of a covered employee during any paid or unpaid break to which the covered employee is entitled under applicable law, contract, or industry standard, including breaks to use bathroom facilities and reasonable travel time to and from bathroom facilities; (D) prevent or discourage the covered employee from exercising any right under the National Labor Relations Act (29 U.S.C. 151 et seq.) or any other Federal law; (E) prevent or discourage the covered employee from exercising any right guaranteed in an applicable collective bargaining agreement; or (F) violate the generally accepted principles of work measurement as set forth in the Code of Work Measurement Ethics of the American Institute of Industrial Engineers and recognized by the Secretary. (2) Adverse employment action A covered employer may not take adverse employment action against a covered employee for failure to meet a quota that— (A) violates paragraph (1); (B) was not described to the covered employee in accordance with subsection (b); (C) is based solely on ranking the performance of the covered employee in relation to the performance of another covered employee or in relation to the past performance of that covered employee; or (D) is based on continuously measuring, recording, or tallying increments of time within a defined time period during which a covered employee is or is not doing a particular activity. (d) Minimization (1) Collection In establishing, maintaining, or using employee work speed data with respect to a quota for a covered employee, a covered employer may not collect, use, maintain, or transfer data on or of the covered employee except as strictly necessary to monitor the compliance of the covered employee with the quota. (2) Employee access In establishing, maintaining, or using employee work speed data with respect to a quota for a covered employee, a covered employer may not disclose any information collected on a covered employee with respect to the quota to any other covered employee of the covered employer except as strictly necessary to fulfill a specific and reasonable business rationale of the covered employer. (e) Recordkeeping (1) In general Each covered employer shall— (A) maintain contemporaneous records, with respect to each covered employee of the covered employer, of— (i) the employee work speed data of each such covered employee; (ii) the aggregated work speed data for similarly situated covered employees at the same place where each such covered employee performs work for the covered employer; and (iii) the written descriptions of the quota of each such covered employee provided under subsection (b)(1); (B) maintain such records for the duration of the employment of each relevant covered employee; and (C) make such records available to the Secretary upon request. (2) Supplementation and dispute of records (A) Supplementation of records Each covered employer shall enable a covered employee, upon request of the covered employee at or after the time of any employee work speed data collection with respect to the covered employee, to supplement the employee work speed data by recording any reason the covered employee provides for any defined time period during which the covered employee was not performing work-related tasks, including because the covered employee was taking a paid or unpaid break, using a bathroom facility (including reasonable travel to and from the facility), reporting an injury or receiving attention due to an injury, exercising a right guaranteed under the National Labor Relations Act (29 U.S.C. 151 et seq.) or another Federal law, or exercising a right guaranteed under an applicable covered bargaining agreement. (B) Dispute process (i) In general Each covered employer shall enable a covered employee, upon request of the covered employee at or after the time of any data collection with respect to the covered employee, to review and request correction of the employee work speed data in accordance with clause (ii). (ii) Correction of employee work speed data A covered employer that receives a request by a covered employee under clause (i) shall— (I) investigate and determine whether the employee work speed data is inaccurate; and (II) if determined to be inaccurate— (aa) promptly correct the inaccurate data and notify the covered employee of the covered employer’s determination and correction; and (bb) review and adjust, as appropriate, any adverse employment action that was, partially or solely, based on the inaccurate data and notify the covered employee of the adjustment. (3) Retention of records (A) In general After the termination of employment of a covered employee of a covered employer, the covered employer shall— (i) for not less than 3 years after the date of such termination, retain the records described in paragraph (1) with respect to the 6-month period prior to such date; and (ii) make such records available to the Secretary upon request. (4) Rule of construction Nothing in this subsection shall require a covered employer to keep records described in paragraph (1) with respect to employee work speed data if such covered employer does not otherwise monitor employee work speed data. (f) Right To request (1) In general A covered employer shall, upon receiving a request under paragraph (2) or (3), provide the relevant copies described in such paragraphs to, as the case may be, the covered employee, designated employee representative, or individual who was a covered employee— (A) except as provided in subparagraph (B)(ii), at no cost to the covered employee, designated employee representative, or individual who was a covered employee; (B) with respect to— (i) a covered employee, by a human representative of the covered employer; or (ii) a designated employee representative or an individual who was a covered employee, by a human representative of the covered employer or through the mail (at the cost of the designated employee representative or individual, respectively); and (C) as soon as practicable but not later than— (i) 7 business days after receipt of a request for such copies with respect to employee work speed data or aggregate work speed data; or (ii) 2 business days after receipt of a request for any other copy. (2) Requests during employment A covered employee, or a designated employee representative of such covered employee at the request of the covered employee, may request from the covered employer of the covered employee a copy of the written description described under subsection (b), a copy of the employee work speed data (in a human-readable format that a reasonable individual can understand) of the covered employee for the preceding 6-month period, and a copy of the aggregated work speed data (in a human-readable format that a reasonable individual can understand) for similarly situated covered employees at the same place where the covered employee performs work for the covered employer for the preceding 6-month period. (3) Requests after employment termination An individual who was a covered employee with respect to a covered employer, or a designated employee representative with respect to such an individual, may, not later than 3 years after the date of termination of employment of the covered employee with the covered employer, request from the covered employer a copy of— (A) the written description described under subsection (b) effective on the date of termination of the covered employee; (B) the employee work speed data (in a human-readable format that a reasonable individual can understand) of the covered employee for the 6-month period prior to such date of termination; and (C) the aggregated work speed data (in a human-readable format that a reasonable individual can understand) for similarly situated covered employees at the same place where the covered employee performs work for the covered employer for such 6-month period. (4) Rule of construction Nothing in this subsection shall require a covered employer to— (A) monitor employee work speed data; or (B) provide information related to employee work speed data if the covered employer does not otherwise monitor such employee work speed data. (g) Posting of notices (1) In general Each covered employer shall post, in a conspicuous and accessible location, a notice in the covered facility of the covered employer regarding the rights of covered employees under this section, including what constitutes a permissible quota, the right to request quota descriptions and employee speed data information, and the right to make a complaint to Federal authorities regarding a violation of any right under this section. (2) Requirements for notices Each notice described in paragraph (1) shall be in a manner required by the Director that— (A) is in plain language; and (B) is in English, Spanish, and any other language that constitutes the primary language of any covered employee at the covered facility. (h) Breaks for covered employees (1) In general Each covered employer shall— (A) with respect to each covered employee of such covered employer— (i) provide, for every 4 hours of work by such a covered employee, to the covered employee not less than one 15-minute rest break paid at the regular rate at which the covered employee is employed; and (ii) provide, at the time the covered employer hires such a covered employee, notice to the covered employee, in plain language and the primary language of the covered employee, that— (I) the covered employee is entitled to the paid rest breaks described in clause (i); (II) retaliation by the covered employer against the covered employee for requesting or taking such paid rest breaks is prohibited; and (III) the covered employee, or a designated employee representative of the covered employee, has a right to file a complaint with the Secretary for any violation by the covered employer of this subsection; and (B) display, in a conspicuous and accessible location, a sign at each covered facility of the covered employer that includes, in English, Spanish, and any other language that constitutes the primary language of any covered employee at the covered facility, the information in the notice described in subparagraph (A)(ii). (2) Notice Not later than 180 days after the date of enactment of this section, the Secretary of Labor shall issue regulations with respect to the design and content of the sign described in paragraph (1)(B), including a sample design. (3) Interaction with other laws Nothing in this subsection shall be construed to supersede or preempt any Federal, State, or local law or collective bargaining agreement requiring longer paid rest breaks than those required under paragraph (1)(A)(i). (i) Unlawful retaliation (1) In general A person, including a covered employer, an agent of a covered employer, or person acting as or on behalf of a covered employer conducting hiring or any related activity, or an officer or agent of any entity, business, corporation, partnership, or limited liability company, may not— (A) discharge or in any way retaliate, discriminate, or take any adverse employment action against any individual for exercising any right conferred under this section, or for being perceived as exercising such a right, including for— (i) requesting copies under subsection (f); (ii) filing a complaint under subparagraph (A) of section 16(f) of the Fair Labor Standards Act of 1938 regarding a violation of this section or designating a representative in accordance with subparagraph (B) of such section to file such a complaint; or (iii) commencing a proceeding under section 16(b) of the Fair Labor Standards Act of 1938 (29 U.S.C. 216(b)) for a violation of this section; or (B) otherwise prevent an individual for exercising such a right or take any action against an individual that might deter a reasonable employee from asserting a right conferred under this section. (2) Protections for good faith allegations The protections under paragraph (1) shall apply to any individual who mistakenly, but in good faith, alleges a violation of a requirement of this section. (3) Explicit reference not required A complaint or other communication by an individual, including a covered employee, may be the exercise of a right for purposes of paragraph (1) regardless of whether the complaint or communication is in writing or makes explicit reference to this Act. (4) Rebuttable presumption If a person takes adverse action against a covered employee within 90 days of the covered employee engaging, or attempting to engage in, activities protected by paragraph (1), such conduct shall establish a rebuttable presumption that the adverse action is an adverse action in violation of such paragraph. Such presumption may be rebutted by clear and convincing evidence that— (A) the action was taken for other permissible reasons; and (B) the engaging or attempting to engage in activities protected by paragraph (1) was not a motivating factor in the adverse action. (j) Quota task force Not later than 90 days after the date of the enactment of this section, the Director shall convene a task force with labor organizations, worker advocacy organizations, and covered employees to develop strategies for labor organizations and worker advocacy organizations to— (1) assist in the enforcement of this section; (2) train covered employees with respect to new rights provided through this section; and (3) provide the Director with recommendations on the implementation of regulations related to this section.