Warehouse workers in California are one step closer to being able to pee in peace. Yesterday’s vote in the California Senate was 26-11 to approve AB 701, a bill that targets Amazon and other warehousing firms who track employee productivity. Employers would be prohibited from counting worker productivity against compliance with safety and health laws (and yes, even bathroom breaks) as a result of the bill. Warehouse workers are increasingly being governed by algorithms. This bill is the first to be addressed by algorithmic work in America, according to organizers. It’s currently on its way to Governor Gavin Newsom for his 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.)
Advocates like Yesenia Barrerra, a former Amazon seasonal worker, were pleased to hear that AB 701 was passed. She traveled from her home in California to support the bill and helped stage a mock assembly on the steps to the Capitol. Barrera worked in the fulfillment center at Rialto (California) for five months before she was fired. She didn’t know the inflexibility of Amazon’s productivity system or how extensive Amazon’s barcode-based employee tracking matrix. It was assumed that only lazy people were fired.
Barrera’s barcode scanner got caught underneath some conveyor belt boxes during one busy shift. She struggled to get the gun out as more boxes tumbled down the conveyor belt. She finally pulled it out but the gun hit her face. It injures her eyes so she temporarily sees black. Her supervisor arrived shortly after to inquire why she had stopped scanning. “I thought, how could she have known that I wasn’t scanning?” “She wasn’t in that area.” She says at an on-site clinic she was handed a paper towel, an ibuprofen and told to go back to work. My manager told me that he saw her take the ibuprofen. Barrera says, “You’ll be fine.” During her own vision loss, Barrera became aware of the fact that an all-seeing eye was constantly watching over her.
Barrera was subsequently written up for excessive “Time Off Task,” Amazon’s system to track employee productivity. The TOT clock started ticking if Barrera stayed longer than five minutes without scanning the barcode. This applies regardless of whether the time was used to go to the toilet, wipe down the workstation or just for a rest. Amazon changed the TOT system in June to allow for a greater average of TOT. A TOT excess was cause for termination and a writeup. Barrera says that sometimes we would chit-chat and then the girls would say, “I’m having my period and I’m receiving Time Off Task.” When she went to report for her next shift, she found her badge was not working and she had been fired. (Amazon didn’t respond to any requests for comment about Barrera’s story, or on anything related to AB 701.
Barrera workers would see a change in the system with AB 701. Employers must disclose to employees their productivity goals upon hiring, as well as any sanctions for not meeting them. Time off for trips to the toilet and legal health measures such as stretching or disinfecting a workspace don’t count. “Trips” is what you mean. Some warehouses can hold so many items that it takes 10-15 minutes to walk round the bathroom. Eight if you jog, says Barrera.) The state labor commissioner has access to information on injury rates and quotas, and workers can request 90-days worth of productivity data. An employee may sue an employer if they fail to follow the Private Attorney Generals Act.
The PAGA acts as a “force multiplier,” which the state Senate calls a “force multiplier” in labor law enforcement. It basically deputizes individual workers as lawyers general. Employees can file lawsuits against employers for violations of labor, health or safety. This applies to not only them but also their coworkers as well. After discussions with business organizations, legislators added a clause to AB701 which gives employers thirty days to correct a problem before PAGA kicks into effect. If a worker wins their PAGA suit, the company would need to pay civil penalties but not damages and offer injunctive relief. This means they’d have the right to stop the workers’ behavior and cover the costs of attorney fees. Lorena Gonzalez (an assembly member) said that the bill 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 provided by the US Occupational Safety and Health Administration. It found that Amazon warehouse workers sustained nearly double the number of injuries than workers working in non-Amazon locations.
Gonzalez concluded workers need regulation to safeguard them. She says, “As soon as you start to peel away the onion you will see what is going on.” It’s the simple fact that the computer creates the tasks the worker needs and then pushes on and on. It’s also what we have seen in gig economy. “Wow, these laws don’t have the right tools to handle this,” we thought.
Amazon has not commented on the bill publicly, however, on the same day that The Washington Post’s analysis was published, Amazon updated its vision to “be Earth’s best employer” and made changes to its Time Off Task policy. The company also announced it will stop screening pre-employment 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 need more resources, suggests Rachel Michelin, president of the California Retailers Association. 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 who cosponsored the bill with the California Teamsters Public Affairs Council, Warehouse Worker Resource Center, and other labor groups, said, “When you are on the ground you discover that [taking the toilet breaks you require] is logistically impossible.” Workers are afraid they will get dinged, because it is too slow to travel there and back. He also said, “Also if these requirements were already in place, workers wouldn’t get hurt as much.”
The current state law allows for a break during meals and rest breaks at the end of each shift. However, this does not address how employers will manage their workers’ time between. Prior to algorithms being able to monitor and control a worker’s movements, second-by-second, workers had greater flexibility to take breaks when they needed. You can work as a warehouse worker for a distribution company across the street from Amazon. You are given a list with items to be taken from the warehouse. Once you have completed your task, 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 union coalition. “Not at Amazon.” He calls the company’s level of control “hyper-micromanagement.”
Michelin also points out that the bill is aimed at one company, and does not take into consideration the diverse industry. This includes automobiles, agriculture, and even motor vehicles. 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 only going after Uber and Lyft, but a lot more people were involved in it.”
Beth Gutelius is the research director for University of Illinois’s Center for Urban Economic Development. She sees fewer unexpected consequences for AB 701. “The issue with AB 5 is that all those independent contractors whose status wasn’t as clear-cut than the ride-sharing drivers was problematic. She believes it might nip bad behavior in its tracks. It alerts other companies that are trying to follow Amazon in their footsteps and warns them about the possibility of losing access to the sandbox without any regulatory structure.
Luis Portillo is the director of public policies at the probusiness Inland Empire Economic Partnership. This former fulfillment center was home to Barrera. He worries about whether it will be practical for employees to receive quotas when their workloads are affected by the product flow. The bill was criticized by Portillo for creating a culture that encourages warehouses to leave the state. However, given California’s major ports and the fact that warehouses are located close to customers and suppliers, some observers may find it difficult to see this as anything more than an empty threat. Gutelius says that Amazon cannot uproot California’s distribution network and be competitive in California.
A previous version of this bill established standards for warehouse quotas. However, that has been removed. Gonzalez says that the matter is not closed. Gonzalez believes that if the law is signed, the data could be used to help Cal-OSHA or lawmakers develop a standard.
Gutelius views the bill as an example for other states. However, she believes that federal legislation is the ultimate goal. The devil is in the details. We’ll be learning a lot both from the process of the bill moving through the legislature, and the details about how it is enforced. My concern is that our labor laws are not adequately funded for some time.
The organizers will continue fighting no matter what the outcome. Not only in California, but across the country, essential workers have been brought to our attention by the pandemic. Frumin says that workers from the same company in California will learn of California’s victories and demand the same protections. You’re playing with the workers’ lives.”
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Publiated at Thu, 09/09/2021 20:50:43 +0000