California Senate passes warehouse workers bill, taking aim at Amazon

California warehouse workers are now closer to being allowed to urinate in peace. Yesterday's vote in the state Senate was 26-11. This bill is targeted squarely at Amazon and other warehousing firms that track worker productivity. Employers would be prohibited from counting warehouse workers' productivity against compliance with safety and health laws. The bill, which organizers claim is the first to address algorithmic work in the country, is currently on its way to Governor Gavin Newsoms desk.
Some observers believe Newsom will sign the bill, given his track record with pro-worker legislation such as AB 5. However, he has so far remained silent on AB 701. Newsom's office declined to answer questions about his intentions and said that the bill would be evaluated on its merits once it reached the governors desk. This recall election will take place September 14.

Advocates like Yesenia Barrera, a former Amazon seasonal worker, were pleased to hear that AB 701 was passed. She traveled to Sacramento to support the bill and helped stage a mock assembly line at the Capitol steps. Barrera worked in the fulfillment center at Rialto, California for five months before her termination in 2019. She didn't know the rigidity of Amazon's productivity system nor the extent of Amazons barcode-based employee tracking matrix. She believed that only lazy people were fired.

Barreras barcode scanning device got caught underneath some boxes along the conveyor belt during a hectic shift. She struggled to get the gun out as more boxes tumbled down the conveyor belt. She finally pulled it out but it struck her face. It injures her eye and temporarily makes her see black. Her supervisor appeared shortly afterwards to inquire why shed had stopped scanning. I thought, "How did she know that I wasn't scanning?" She was not in the area. She claims she was given a paper towel and an ibuprofen at an onsite clinic. Then she was told to go back to work. My manager said that he had seen you taking the ibuprofen. Barrera says that you'll be fine. During her own vision loss, she realized that she was constantly under the watchful eye of an all-seeing eye.

Barrera was soon written up by another manager for excessive Time Off Task, Amazons system to track employee productivity. The TOT clock started ticking if Barrera waited more than five minutes before scanning a barcode. This applies regardless of whether the time was spent in the bathroom, wiping down a desk, laughing, or just taking a break. Amazon changed the system in June to average TOT over a longer time. Too much TOT could lead to termination and a writeup. We would chat and sometimes the girls would say, "I'm on my period and I get Time Off Task," Barrera said. When she went to work, she found that shed had been terminated and that her badge didn't work. (Amazon didn't respond to any requests for comment about Barrera's story, or anything related to AB 701.)

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Barrera workers would see a change in the system with AB 701. Employers must disclose to employees their productivity quotas upon hiring, as well as any penalties for not meeting them. Time off work does not include trips to the toilet, legal health and safety measures such as stretching or sanitizing a workspace, or time spent in the washroom. (Trips are the operative word. Many warehouses can hold so many items that it takes 10 to 15 minutes to walk round the bathroom. Eight if you jog, says Barrera.) The state labor commissioner has access to data about injury rates and quotas, and workers can request 90-day supply of their productivity figures. An employee can sue an employer if they fail to comply with the Private Attorney Generals Act.

The PAGA is what the state Senate calls a force multiplier in labor law enforcement. It basically deputizes individual workers as attorneys general. Employees can file lawsuits against employers for violations of labor, health and safety. This applies to not only them but also their coworkers as well as the state. After discussions with business groups, legislators added a clause to AB 701 which gives employers 30 days to correct a problem before PAGA kicks into effect. If a worker wins their PAGA suit, the company would have to pay civil penalties but not damages and provide injunctive relief. This means they would have to stop the workers' behavior and pay their attorneys fees. Assembly Member Lorena Gonzalez, who sponsored the bill, said that this is not a cash cow.

Gonzalez received complaints from warehouse workers regarding their injuries rates and created AB 701. The bill was introduced to the state Assembly in February. It passed the legislature in May. The Washington Post published a four-day later an analysis of data from US Occupational Safety and Health Administration. It found that Amazon warehouse workers sustained nearly twice as many injuries than workers in non-Amazon warehouses.

Gonzalez concluded that workers need regulation to protect themselves. You will see the whole picture when you cut through the onion. It is the fact that the computer creates the work the worker should be capable of and then pushes on and pushes more. It's also what we have seen in the gig economy. We thought, "Wow, our laws are seriously inept to handle this."

Amazon has not commented publicly on this bill. However, on the day The Washington Post published their analysis, Amazon updated its vision to Earth's Best Employer. The company also announced that it will no longer screen pre-employment for marijuana use.

Opponents of the bill argue that the current law gives workers the right to rest and meal breaks. Rachel Michelin, president, California Retailers Association, suggested that perhaps Cal-OSHA, the labor commissioner, is just in need of more resources. Labor groups claim this ignores modern warehouse work which often takes place in multimillion-square-foot buildings. Christian Castro, spokesperson for the Los Angeles County Federation of Labor and co-sponsor of the bill with the California Teamsters Public Affairs Council, Warehouse Worker Resource Center, said that it is difficult to take the necessary bathroom breaks when you are on the ground. He said workers are afraid they will be dinged, because it is too difficult to get there and back. He also said that if these requirements were already in place, workers wouldn't be so hurt.

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The current state law allows for a meal break and two periods of rest per shift. However, it does not address how employers manage time between. Before algorithms could monitor and guide workers second-by-second, employees had more freedom to take breaks when they needed. A warehouse worker can work for a food distributor company across the street. You are given a list of items to be taken from the warehouse. Once you have completed that, they will load it onto a truck. It takes X time. Eric Frumin is the director of safety and health at the Strategic Organizing Center. It's a coalition of unions. Not at Amazon. He calls the companys level of control hyper-micromanagement.

Another point made by Michelins is that this bill targets one company only and does not take into consideration the diverse industry. This includes automobiles as well as agriculture. She cited AB 5, another Gonzalez-sponsored bill, which reclassified many contractors as employees. However, it created problems for freelance journalists and photographers who lost their jobs after it was passed. While she was focusing on Uber and Lyft, there were many other people involved.

Beth Gutelius is the University of Illinois Center for Urban Economic Development research director. She expects fewer unintended outcomes from AB 701. AB 5 had a problem in that all the independent contractors were not as secure as ride-sharing drivers. It is unlikely that we will see the same dynamic here. She believes it could help to nip bad behavior in its tracks. This alerts other companies that are trying to follow Amazon's lead and warns them that their window of opportunity is closing to be able play in the sandbox without any regulatory framework.

Luis Portillo is the director of public policy for the pro-business Inland Empire Economic Partnership. Barreras former fulfillment centre sits here. He worries about the practicality in providing quotas when employees' workloads are affected by the flow of product. He said that the bill could encourage warehouses to leave state, and criticized it for doing so. However, warehouse locations are largely determined by the proximity of suppliers and customers. Given the importance of California's major ports, it is difficult for observers to see that as anything other than an empty threat. Gutelius says that Amazon cannot possibly move its distribution network from California and be competitive in the same way they are currently competing.

An earlier bill had established standards for warehouse quotas. However, that version was removed. Gonzalez does not consider this matter resolved. We have to move forward. Gonzalez believes that the data collected through the law could be used by Cal-OSHA or lawmakers to help them develop a standard.

Gutelius views the bill as a model for other state legislatures, but she believes that federal legislation is the ultimate goal. The devil is in the details. We'll learn a lot about both how the bill was passed and how it is enforced. Since labor laws have been long underfunded, I believe there are real questions about their capacity.

The organizers will continue fighting no matter what the outcome. The California pandemic has brought attention to the dangers of essential workers, as well as the conditions in which they work. Frumin says that workers from the same companies in different states will demand the same protections if they learn about California's victories. You're playing with the workers' work lives.

This story first appeared on wired.com

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