Warehouse workers in California are one step closer to being able to pee in peace. Yesterday, the state Senate voted 26-11 to pass AB 701, a bill aimed squarely at Amazon and other warehousing companies that track worker productivity. The bill would prevent employers from counting health and safety law compliance—and yes, bathroom breaks—against warehouse workers’ productive time, which is increasingly governed by algorithms. The bill, which organizers call the first in the nation to address the future of algorithmic work, is now en route to Governor Gavin Newsom’s desk for signature.

Although some observers expect Newsom to sign the bill given his record on other pro-worker legislation, such as AB 5, he has thus far remained mum on AB 701. When asked about his intentions, Newsom’s office demurred, saying only, “The bill will be evaluated on its merits when it reaches the governor’s desk.” (The governor is currently fending off a recall election, which takes place September 14.)

AB 701’s passage came as welcome news to advocates like Yesenia Barerra, a former seasonal Amazon worker who traveled to Sacramento to campaign for the bill, helping stage a mock assembly line on the steps of the state capitol. Barrera staffed the company’s Rialto, California, fulfillment center for five months until her termination in 2019. When she was hired, she didn’t realize the rigidity of the productivity system or the extent of Amazon’s camera- and barcode-based employee tracking matrix. She assumed only slackers got fired.

During one hectic shift, Barrera’s barcode scanning gun got stuck underneath some boxes on the conveyor belt. As more boxes careened down the line, she struggled to dislodge the gun. Eventually she yanked it out, but it hit her face, injuring her eye so that she momentarily saw black. Minutes later her supervisor materialized to ask why she’d stopped scanning. “I was thinking, how did she know I was not scanning? She wasn’t in the area.” At an onsite clinic, she says she was given a wet paper towel and an ibuprofen, then told to return to work. “My manager said, I saw you take the ibuprofen. You’ll be fine,” recalls Barrera. Amid her own bout of impaired vision, she became acutely aware that she was under constant surveillance by an all-seeing eye.

Not long after, Barrera was written up by a different manager for too much “Time Off Task,” Amazon’s system for tracking employee productivity. More than five minutes without scanning a barcode set the TOT clock ticking, regardless of whether that time was spent using the bathroom, wiping down a workstation, goofing off, or simply taking a breather. (In June, Amazon revised the system, averaging TOT over a longer period.) Too much TOT was grounds for a writeup and, eventually, termination. “Sometimes we’d chit chat, and the girls would be like, I'm on my period, and I’m getting Time Off Task,” Barrera says. She found out she’d been terminated when she reported to her next scheduled shift and her badge wouldn’t work. (Amazon did not respond to requests for comment on Barrera's story or anything else related to AB 701.)

AB 701 would change the game for workers like Barrera. The bill requires employers to disclose productivity quotas to workers upon hire, alongside any penalties for falling short. Trips to the bathroom don’t count as time off task, nor do legally permitted health and safety measures like stretching or sanitizing a workstation. (“Trips” is the operative word. Many warehouses are so capacious that a round-trip walk to the restroom might eat up 10 to 15 minutes. Eight if you jog, says Barrera.) It also gives workers the right to request 90 days’ worth of their own productivity figures and grants the state labor commissioner access to data on quotas and injury rates. If an employer fails to comply, an employee can sue under a state statute called the Private Attorney Generals Act.

PAGA serves as what the state Senate called a “force multiplier” for labor law enforcement, essentially deputizing individual workers as attorneys general. It lets employees file lawsuits against their employers for labor or health and safety violations on behalf of not just themselves but their coworkers and the state. After talks with business groups, lawmakers added a provision to AB 701 that gives employers 30 days to fix a problem before PAGA kicks in. Should a worker win their suit under PAGA, companies would have to pay civil penalties, but no damages, and provide injunctive relief, meaning they’d have to stop the behavior at issue and pay the worker’s attorneys fees. “This isn’t a cash cow,” says Assembly Member Lorena Gonzalez, the bill’s sponsor.

AB 701 was born out of complaints Gonzalez heard from warehouse workers about their injury rates. In February, she introduced the bill to the state Assembly, where it passed in May. Four days later, The Washington Post released an analysis of data from the US Occupational Safety and Health Administration, finding that Amazon warehouse workers were seriously injured at nearly twice the rate of workers in non-Amazon warehouses.

Gonzalez concluded that workers needed regulation to protect them. “As you peel back the onion, you realize what's going on,” she says. “It's really the fact that the computer generates what the worker should be able to accomplish, and then pushes and pushes and pushes. We've also seen it in the gig economy. We thought, wow, our laws are seriously inadequate to deal with this.”

Amazon hasn’t commented publicly on the bill, but on the day The Washington Post published its analysis, Amazon released an update on its “vision to be Earth’s Best Employer.” On top of changes to its Time Off Task policy, the company said it would stop pre-employment screening for marijuana use.

Industry groups that oppose the bill say that current law already grants workers the right to meal and rest breaks; perhaps the chronically underfunded Cal-OSHA or the labor commissioner just needs more resources, suggests Rachel Michelin, president of the California Retailers Association. Labor groups say this ignores the reality of modern warehouse work, which sometimes unfolds within million-square-foot buildings. “When you’re on the ground, you find out that [taking the bathroom breaks you need] is logistically impossible,” says Christian Castro, spokesman for the Los Angeles County Federation of Labor, which cosponsored the bill along with the California Teamsters Public Affairs Council and the Warehouse Worker Resource Center. “Workers are scared they’ll get dinged because it takes them too long to get there and back,” he said. “Also, if these requirements were already working, their workers wouldn't be getting hurt so much,” he added.

While current state law provides a meal break and two rest periods per shift, it says little about how employers manage workers’ time in between. Before algorithms could monitor and direct a worker’s every move, second by second, employees had more flexibility to steal moments of respite when needed. “You can be a warehouse worker across the street [from Amazon] working for a food distribution company. They give you a list of things to get from the warehouse, put on a pallet, and load onto a truck. You have X amount of time to do it. If you want to take a break, go to the bathroom, take a breather because you just lifted five cartons of cat food, you have time to do that,” says Eric Frumin, director of health and safety at the Strategic Organizing Center, a coalition of unions. “Not at Amazon.” He calls the company’s level of control “hyper-micromanagement.”

Which gets at another of Michelin’s points: “This bill, frankly, is really just targeting one company and not taking into account the diversity of the industry,” which ranges from agriculture to automobiles. She pointed to AB 5, another Gonzalez-sponsored bill that reclassified many so-called contractors as employees but created consequences for groups like freelance journalists and photographers who lost work after its passage and are challenging it in court. “She was going after one or two specific companies”—the ride-hailing startups Uber and Lyft—“but a lot of other people got wrapped up in that.”

Beth Gutelius, research director at the University of Illinois’ Center for Urban Economic Development, foresees fewer unintended consequences with AB 701. “The problem with AB 5 was that there were all these other independent contractors whose status was perhaps less in limbo than ride-sharing drivers. I don't think we see that same dynamic playing out here.” Rather, she thinks it could nip bad behavior in the bud. “It puts other companies who are chasing Amazon's lead on notice that maybe their window is closing for being able to play in the sandbox with no real regulatory framework.”

Luis Portillo, director of public policy at the pro-business Inland Empire Economic Partnership, where Barrera’s former fulfillment center sits, worries about the practicality of providing quotas to employees when workloads fluctuate daily based on the flow of product. He criticized the bill for contributing to a climate that might incentivize warehouses to move out of state. But given that proximity to suppliers and customers largely dictates warehouse locations and given the major ports in California, it’s hard for some observers to hear that as more than an empty threat, at least in most cases. “I don't think there's any way that Amazon could uproot its distribution network in California and still be able to compete in the ways that they are competing,” says Gutelius.

An earlier version of the bill set standards for warehouse quotas, but that was removed. Gonzalez doesn’t consider that matter closed, though. “Ultimately, we have to get there.” She thinks the data they collect through the law, if signed, could help lawmakers or Cal-OSHA develop a standard.

Gutelius sees the bill as a model for other states, although she thinks the ultimate goal is federal legislation. But the devil lurks in the details. “I think we'll learn a lot from both the way that the bill has moved through the legislature and how it’s enforced. Our labor laws have been underfunded for a long time, so I think there are some real questions about capacity.”

No matter the outcome, organizers are energized to keep up the fight. The pandemic has forced attention on essential workers and the dangerous conditions under which they often labor, and not just in California. “When workers in the same companies in other states learn about the victories of these workers in California, you can be sure that they're going to demand some of the same protections,” says Frumin. “Because you're playing with workers' work lives.”

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