New Hampshire House bill targets distribution centers that use quotas

Measure would require disclosure of productivity requirements to workers

Companies disclose productivity requirements and work-speed metrics set for employee

In December, California became the first state to regulate the workday regimen in warehouses and fulfillment centers. House Bill 1076 before the House Labor, Industrial and Rehabilitative Services Committee would make New Hampshire the second.

“I don’t want the takeaway from the committee to be like this is just Amazon-bashing,” Rep. Joshua Adjutant, the Enfield Democrat who sponsored the bill, told the committee.

However, Amazon, with just-in-time logistics and same-and-next day deliveries, is the exemplar of a system that sets productivity quotas for employees. Quotas, calculated by a proprietary productivity metric, specify a number of tasks to be completed within a  defined period time measured to the minute.

Workers are subject to surveillance throughout their shift that monitors and measures the time spent retrieving, handling, packaging and dispatching items. An array of cameras and scanners not only tracks the movement of employees but also captures the images and key strokes on their computers. And the surveillance system measures  “time off task”, those minutes when workers are not keeping up with the pace to meet their quota.

The Open Markets Institute described the surveillance system as “a digital panopticon,” likening it to the design of 19th century prisons featuring a central tower from which guards could observe the conduct of inmates without being seen by them.

Referring to “absurd output metrics” and “outrageous expectations,” Adjutant told the committee that the pace of work required to meet productivity quotas infringed on the rights of employees to eat their meals and use the restroom and compromised their compliance with health and safety guidelines. “A right is a right only if you can exercise it,” he said.

Under state law, employers may not require employees to work for more than five consecutive hours without being granted a 30-minute period to eat a meal. But the law does not require employers to grant other, shorter rest periods, according to the Department of Labor most employers do so.

Adjutant referred to both photographic and anecdotal evidence of Amazon warehouse employees and delivery drivers urinating in plastic bottles and garbage bags for fear of failing to “make rate.” At the same time, he said that employees failing to “make rate” may be penalized, suspended or terminated.

Bathroom breaks

HB 1076 would require employers to provide employees upon hiring with a description of each quota to which they are 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.”

The bill also would forbid employers from requiring employees “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.”

If employees believe that meeting a quota encroached on meal or rest periods, prevented access to restrooms or hindered compliance with health and safety laws, they may request and employers must provide a copy of their “personal work speed data” for the most recent 90 days. Likewise, former employees would be entitled to the same information.

Enforcement of the law would be vested with the Labor Department, whose authority would include discretion to undertake an investigation of any warehouse where the annual injury rate reached 1.5 percent higher than the standard for the industry.

Peter McKenna, an attorney at the Labor Department questioned whether the bill is intended to apply to delivery drivers, who as subcontractors may not be captured by the definitions of employer and employee. Adjutant replied that drivers, whether employees or subcontractors, subject to productivity quotas should be similarly protected.

McKenna acknowledged the department had received at least two complaints about working conditions in warehouses, but was not aware of how they were handled.

Rep. Will Infantine, the Manchester Republican who chairs the committee, indicated he found some merit in the bill, and suggested convening a subcommittee or work session to address the questions it raises.