S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   10020
 
                           I N  A S S E M B L Y
 
                              April 29, 2022
                                ___________
 
 Introduced by M. of A. JOYNER -- read once and referred to the Committee
   on Labor
 
 AN ACT to amend the labor law, in relation to establishing the warehouse
   worker protection act
 
   THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
 BLY, DO ENACT AS FOLLOWS:
 
   Section 1. This act shall be known and may be cited as the  "warehouse
 worker protection act".
   § 2. Legislative findings. The legislature finds and declares that:
   (a)  The rapid growth of just-in-time logistics and same- and next-day
 consumer package delivery, and advances in technology used for  tracking
 employee productivity, have led to a rise in the number of warehouse and
 distribution center workers who are subject to quantified work quotas.
   (b)  Warehouse  and  distribution center employees who work under such
 quotas are expected to complete a  quantified  number  of  tasks  within
 specific  time periods, often measured down to the minute or second, and
 face adverse employment action, including suspension or termination,  if
 they fail to do so.
   (c)  Those  quotas  generally  do not allow for workers to comply with
 safety guidelines or to recover from strenuous activity  during  produc-
 tive  work time, leaving warehouse and distribution center employees who
 work under them at high risk of injury and illness.
   (d) The quotas under which warehouse and distribution center employees
 regularly work also affect their compensation.  Warehouse  and  distrib-
 ution  center  employees who work under a quota may not receive the full
 benefit of minimum wages if their quota is increased to make up for  the
 direct or indirect effect of a minimum-wage increase.
   (e) Quotas in occupations that are already physically demanding incen-
 tivize  unsafe work, resulting in an increase in injuries. The workforce
 in warehouse and logistics is largely comprised of people of  color  who
 depend  upon  these  jobs to provide for their families and often see no
 alternative but to prioritize quota compliance over  their  own  safety.
 These  workers  end  up  working faster than is healthy in order to keep
 their jobs.
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
              

                                                            LBD15159-02-2
 A. 10020                            2
 
   (f) Workplace injuries can take a  terrible  toll  on  workers,  their
 families  and  their  communities,  and can create substantial costs for
 employers. According to the most recent  data  (2020)  released  by  the
 Bureau of Labor Statistics, the warehouse industry itself reports a rate
 of  serious work-related injuries involving lost time or restricted duty
 (4.0 cases/100 full-time workers) that is more than  twice  the  average
 injury rates for all private industry (1.7 cases/100 full-time workers).
 The most common types of work-related serious injury reported by employ-
 ers  in  the  warehouse sector are musculoskeletal injuries, which often
 require workers to miss work and can force workers  permanently  out  of
 the job and even out of the workforce.
   (g)  Warehouse  companies  often require workers to perform fast paced
 manual material handling tasks. These involve  well-known  risk  factors
 for  serious  injury  such  as rapid pace, repetitive forceful exertions
 like lifting heavy packages, and awkward postures like twisting/bending,
 and combinations thereof that are likely to cause musculoskeletal  inju-
 ries.  Scientific evidence shows that effective ergonomic interventions,
 such  as  reducing the pace, package weights and stressful postures, can
 lower the incidence and severity of work-related  musculoskeletal  inju-
 ries.  The research is clear that the most effective method for reducing
 or eliminating these risk factors is to implement an ergonomics  program
 that  includes well-informed analysis of the worksite, implementation of
 solutions to reduce the dangerous risk factors, professionally competent
 medical management, effective worker training, and  meaningful  involve-
 ment by workers and their representatives in all aspects of the program.
   §  3. The labor law is amended by adding a new article 21-a to read as
 follows:
                               ARTICLE 21-A
                      WAREHOUSE WORKER PROTECTION ACT
 SECTION 780. DEFINITIONS.
         781. QUOTAS.
         782. PROTECTION FROM QUOTAS.
         783. TIME ON TASK.
         784. RIGHT TO REQUEST.
         785. INJURY REDUCTION PROGRAM.
         786. UNLAWFUL RETALIATION.
         787. SUBPOENA.
         788. ENFORCEMENT.
         789. PRIVATE RIGHT OF ACTION.
         790. RECORDS.
         791. OTHER POWERS.
   § 780. DEFINITIONS. AS USED IN THIS ARTICLE:
   1. "DEFINED TIME PERIOD" MEANS ANY UNIT OF TIME MEASUREMENT  EQUAL  TO
 OR  LESS  THAN  THE DURATION OF AN EMPLOYEE'S SHIFT, AND INCLUDES HOURS,
 MINUTES, AND SECONDS AND ANY FRACTION THEREOF.
   2. "DESIGNATED EMPLOYEE REPRESENTATIVE" MEANS ANY  EMPLOYEE  REPRESEN-
 TATIVE,  INCLUDING  BUT  NOT LIMITED TO AN AUTHORIZED EMPLOYEE REPRESEN-
 TATIVE THAT HAS A COLLECTIVE BARGAINING RELATIONSHIP WITH THE EMPLOYER.
   3. "EMPLOYEE" MEANS A NONEXEMPT EMPLOYEE  WHO  WORKS  AT  A  WAREHOUSE
 DISTRIBUTION CENTER.
   4.  (A)  "EMPLOYEE  WORK  SPEED  DATA"  MEANS  INFORMATION AN EMPLOYER
 COLLECTS, STORES, ANALYZES, OR  INTERPRETS  RELATING  TO  AN  INDIVIDUAL
 EMPLOYEE'S  PERFORMANCE OF A QUOTA, INCLUDING, BUT NOT LIMITED TO, QUAN-
 TITIES OF TASKS PERFORMED, QUANTITIES OF ITEMS OR MATERIALS  HANDLED  OR
 PRODUCED, RATES OR SPEEDS OF TASKS PERFORMED, MEASUREMENTS OR METRICS OF
 A. 10020                            3
 
 EMPLOYEE  PERFORMANCE  IN  RELATION  TO A QUOTA, AND TIME CATEGORIZED AS
 PERFORMING TASKS OR NOT PERFORMING TASKS.
   (B)  "AGGREGATED DATA" MEANS INFORMATION THAT AN EMPLOYER HAS COMBINED
 OR COLLECTED TOGETHER IN SUMMARY OR OTHER FORM SUCH THAT THE DATA CANNOT
 BE IDENTIFIED WITH ANY INDIVIDUAL.
   5. "EMPLOYER" MEANS A PERSON WHO DIRECTLY OR INDIRECTLY, OR THROUGH AN
 AGENT OR ANY OTHER PERSON, INCLUDING THROUGH THE SERVICES  OF  A  THIRD-
 PARTY  EMPLOYER,  TEMPORARY  SERVICES,  OR  STAFFING AGENCY, INDEPENDENT
 CONTRACTOR, OR ANY SIMILAR ENTITY, AT  ANY  TIME  IN  THE  PRIOR  TWELVE
 MONTHS,  EMPLOYS  OR EXERCISES CONTROL OVER THE WAGES, HOURS, OR WORKING
 CONDITIONS OF FIFTY OR MORE EMPLOYEES AT A SINGLE WAREHOUSE DISTRIBUTION
 CENTER OR FIVE HUNDRED OR  MORE  EMPLOYEES  AT  ONE  OR  MORE  WAREHOUSE
 DISTRIBUTION CENTERS IN THE STATE.
   FOR  THE  PURPOSES  OF  THIS  SUBDIVISION:  (A) ALL EMPLOYEES EMPLOYED
 DIRECTLY OR INDIRECTLY, OR THROUGH AN AGENT  OR  ANY  OTHER  PERSON,  AS
 DESCRIBED  IN  THE OPENING PARAGRAPH OF THIS SUBDIVISION, AS WELL AS ANY
 EMPLOYEE EMPLOYED BY A MEMBER OF A CONTROLLED GROUP OF  CORPORATIONS  OF
 WHICH  THE  EMPLOYER  IS  A  MEMBER, SHALL BE COUNTED IN DETERMINING THE
 NUMBER OF EMPLOYEES EMPLOYED AT A SINGLE WAREHOUSE  DISTRIBUTION  CENTER
 OR  AT  ONE OR MORE WAREHOUSE DISTRIBUTION CENTERS IN THE STATE; AND (B)
 ALL AGENTS OR OTHER PERSONS, AS DESCRIBED IN THE  OPENING  PARAGRAPH  OF
 THIS  SUBDIVISION, AND ALL MEMBERS OF A CONTROLLED GROUP OF CORPORATIONS
 OF WHICH THE EMPLOYER IS A MEMBER, SHALL BE DEEMED TO BE  EMPLOYERS  AND
 SHALL  BE  JOINTLY  AND  SEVERALLY  RESPONSIBLE FOR COMPLIANCE WITH THIS
 ARTICLE. FOR PURPOSES OF THIS SUBDIVISION, THE TERM "CONTROLLED GROUP OF
 CORPORATIONS" SHALL BE DEFINED AS PROVIDED UNDER  SECTION  1563  OF  THE
 INTERNAL  REVENUE  CODE,  26  U.S.C.    SECTION  1563, EXCEPT THAT FIFTY
 PERCENT SHALL BE SUBSTITUTED FOR EIGHTY PERCENT WHERE EIGHTY PERCENT  IS
 SPECIFIED IN THAT DEFINITION.
   6.  "MUSCULOSKELETAL  INJURIES AND DISORDERS" MEANS WORK RELATED INJU-
 RIES, OR DISORDERS, OF THE MUSCLES, NERVES, TENDONS, LIGAMENTS,  JOINTS,
 CARTILAGE  OF  THE UPPER AND LOWER LIMBS, NECK AND LOWER BACK (INCLUDING
 SPINAL DISCS) THAT (A)  ARE  CAUSED  BY  SUDDEN  OR  SUSTAINED  PHYSICAL
 EXERTION,  OR  (B)  ARE NOT THE RESULT OF ANY INSTANTANEOUS NON-EXERTION
 EVENT, SUCH AS SLIPS, TRIPS, OR FALLS.
   7. "PERSON" MEANS AN  INDIVIDUAL,  CORPORATION,  PARTNERSHIP,  LIMITED
 PARTNERSHIP,  LIMITED  LIABILITY PARTNERSHIP, LIMITED LIABILITY COMPANY,
 BUSINESS TRUST,  ESTATE,  TRUST,  ASSOCIATION,  JOINT  VENTURE,  AGENCY,
 INSTRUMENTALITY, OR ANY OTHER LEGAL OR COMMERCIAL ENTITY, WHETHER DOMES-
 TIC OR FOREIGN.
   8.  "QUALIFIED  ERGONOMIST"  MEANS AN ERGONOMIST WHO IS ABLE TO DEMON-
 STRATE PROFICIENCY IN THE CORE, MINIMUM COMPETENCIES OF  ERGONOMICS  AND
 INJURY PREVENTION, AS DEFINED BY THE COMMISSIONER. UNTIL THE COMMISSION-
 ER DEFINES SUCH COMPETENCIES AND APPROVES ERGONOMISTS IN ACCORDANCE WITH
 SUCH  COMPETENCIES,  CONSULTANTS  APPROVED  BY THE COMMISSIONER UNDER 12
 CRR-NY 59 AND 60 WITH A CREDENTIAL AS A CERTIFIED SAFETY PROFESSIONAL OR
 CERTIFIED INDUSTRIAL HYGIENIST SHALL BE DEEMED TO QUALIFY AS AN ERGONOM-
 IST.
   9. "QUOTA" MEANS A WORK STANDARD WHICH:
   (A) AN EMPLOYEE IS ASSIGNED OR REQUIRED TO PERFORM: (I) AT A SPECIFIED
 PRODUCTIVITY SPEED; OR A QUANTIFIED NUMBER OF TASKS,  OR  TO  HANDLE  OR
 PRODUCE  A  QUANTIFIED AMOUNT OF MATERIAL, WITHIN A DEFINED TIME PERIOD;
 OR
   (B) AN EMPLOYEE'S ACTIONS  ARE  CATEGORIZED  BETWEEN  TIME  PERFORMING
 TASKS AND NOT PERFORMING TASKS, AND THE EMPLOYEE'S FAILURE TO COMPLETE A
 TASK  PERFORMANCE  STANDARD OR RECOMMENDATION MAY HAVE AN ADVERSE IMPACT
 A. 10020                            4
 
 ON THE EMPLOYEE'S CONTINUED EMPLOYMENT OR THE CONDITIONS OF SUCH EMPLOY-
 MENT.
   10.  "WAREHOUSE DISTRIBUTION CENTER" MEANS AN ESTABLISHMENT AS DEFINED
 BY ANY OF THE FOLLOWING NORTH AMERICAN  INDUSTRY  CLASSIFICATION  SYSTEM
 ("NAICS") CODES, HOWEVER SUCH ESTABLISHMENT IS DENOMINATED:
   (A) FOUR HUNDRED NINETY-THREE FOR WAREHOUSING AND STORAGE;
   (B) FOUR HUNDRED TWENTY-THREE FOR MERCHANT WHOLESALERS, DURABLE GOODS;
   (C)  FOUR  HUNDRED  TWENTY-FOUR  FOR  MERCHANT WHOLESALERS, NONDURABLE
 GOODS;
   (D) FOUR HUNDRED FIFTY-FOUR THOUSAND ONE HUNDRED  TEN  FOR  ELECTRONIC
 SHOPPING AND MAIL-ORDER HOUSES; OR
   (E)  FOUR HUNDRED NINETY-TWO THOUSAND ONE HUNDRED TEN FOR COURIERS AND
 EXPRESS DELIVERY SERVICES.
   § 781. QUOTAS. EACH EMPLOYER SHALL  PROVIDE  TO  EACH  EMPLOYEE,  UPON
 HIRE,  OR  WITHIN  THIRTY  DAYS OF THE EFFECTIVE DATE OF THIS ARTICLE, A
 WRITTEN DESCRIPTION OF EACH QUOTA TO  WHICH  THE  EMPLOYEE  IS  SUBJECT,
 INCLUDING THE QUANTIFIED NUMBER OF TASKS TO BE PERFORMED OR MATERIALS TO
 BE  PRODUCED  OR HANDLED, WITHIN THE DEFINED TIME PERIOD, AND ANY POTEN-
 TIAL ADVERSE EMPLOYMENT ACTION THAT COULD RESULT FROM  FAILURE  TO  MEET
 THE  QUOTA.  EACH  TIME THE QUOTA CHANGES THEREAFTER, THE EMPLOYER SHALL
 PROVIDE AN UPDATED WRITTEN  DESCRIPTION  OF  EACH  QUOTA  TO  WHICH  THE
 EMPLOYEE IS SUBJECT WITHIN TWO BUSINESS DAYS OF SUCH QUOTA CHANGE.  EACH
 TIME AN EMPLOYER TAKES AN ADVERSE EMPLOYMENT ACTION AGAINST AN EMPLOYEE,
 THE  EMPLOYER  SHALL PROVIDE THAT EMPLOYEE WITH THE APPLICABLE QUOTA FOR
 THE EMPLOYEE.
   § 782. PROTECTION FROM QUOTAS. AN EMPLOYEE SHALL NOT  BE  REQUIRED  TO
 MEET  A QUOTA THAT PREVENTS COMPLIANCE WITH MEAL OR REST PERIODS, USE OF
 BATHROOM FACILITIES, INCLUDING REASONABLE TRAVEL TIME TO AND FROM  BATH-
 ROOM  FACILITIES, OR INCREASES THE RISKS OF MUSCULOSKELETAL INJURIES AND
 DISORDERS. AN EMPLOYER SHALL NOT TAKE ADVERSE EMPLOYMENT ACTION  AGAINST
 AN  EMPLOYEE FOR FAILURE TO MEET A QUOTA THAT DOES NOT ALLOW A WORKER TO
 COMPLY WITH MEAL AND REST PERIODS, OR MINIMIZE THE RISKS  OF  MUSCULOSK-
 ELETAL  INJURIES  AND DISORDERS, OR FOR FAILURE TO MEET A QUOTA THAT HAS
 NOT BEEN DISCLOSED TO THE EMPLOYEE PURSUANT  TO  SECTION  SEVEN  HUNDRED
 EIGHTY-ONE OF THIS ARTICLE.
   §  783.  TIME ON TASK. 1. ANY ACTIONS TAKEN BY AN EMPLOYEE TO MINIMIZE
 THE RISKS OF MUSCULOSKELETAL INJURIES  AND  DISORDERS  AND  COMPLY  WITH
 REQUIREMENTS  OF  THE INJURY PREVENTION PROGRAM SHALL BE CONSIDERED TIME
 ON TASK AND PRODUCTIVE TIME FOR PURPOSES  OF  ANY  QUOTA  OR  MONITORING
 SYSTEM.
   2.  NOTWITHSTANDING  SUBDIVISION  ONE OF THIS SECTION, CONSISTENT WITH
 EXISTING LAW, PAID AND UNPAID BREAKS SHALL NOT BE CONSIDERED  PRODUCTIVE
 TIME  FOR  THE  PURPOSE  OF  ANY  QUOTA  OR MONITORING SYSTEM UNLESS THE
 EMPLOYEE IS REQUIRED TO REMAIN ON CALL.
   § 784. RIGHT TO REQUEST. 1. (A) A CURRENT OR FORMER EMPLOYEE  HAS  THE
 RIGHT  TO  REQUEST,  AND  THE  EMPLOYER  SHALL PROVIDE AT NO COST TO THE
 EMPLOYEE, A WRITTEN DESCRIPTION OF EACH QUOTA TO WHICH THE  EMPLOYEE  IS
 SUBJECT,  A  COPY  OF  THE EMPLOYEE'S OWN PERSONAL WORK SPEED DATA AND A
 COPY OF THE PRIOR SIX MONTHS OF AGGREGATED WORK SPEED DATA  FOR  SIMILAR
 EMPLOYEES AT THE SAME ESTABLISHMENT.
   (B)  IF A FORMER EMPLOYEE REQUESTS A WRITTEN DESCRIPTION OF THE QUOTAS
 TO WHICH THEY WERE SUBJECT AND A COPY OF THEIR OWN PERSONAL  WORK  SPEED
 DATA  PURSUANT  TO PARAGRAPH (A) OF THIS SUBDIVISION, THE EMPLOYER SHALL
 PROVIDE SIX MONTHS OF THE FORMER EMPLOYEE'S  QUOTAS  AND  PERSONAL  WORK
 SPEED  DATA FOR THE SIX MONTHS PRIOR TO THE DATE OF THE EMPLOYEE'S SEPA-
 RATION FROM THE EMPLOYER.
 A. 10020                            5
 
   2. AN EMPLOYER THAT RECEIVES A WRITTEN OR ORAL REQUEST FOR INFORMATION
 PURSUANT TO SUBDIVISION ONE  OF  THIS  SECTION  SHALL  COMPLY  WITH  THE
 REQUEST  AS  SOON  AS  PRACTICABLE,  BUT NO LATER THAN TWO BUSINESS DAYS
 FOLLOWING THE DATE OF THE REQUEST.
   3.  NOTHING IN THIS SECTION SHALL REQUIRE AN EMPLOYER TO USE QUOTAS OR
 MONITOR WORK SPEED DATA. AN EMPLOYER THAT DOES NOT MONITOR THIS DATA HAS
 NO OBLIGATION TO PROVIDE IT.
   § 785. INJURY  REDUCTION  PROGRAM.  EVERY  EMPLOYER  SUBJECT  TO  THIS
 SECTION  SHALL  ESTABLISH  AND  IMPLEMENT  AN  INJURY  REDUCTION PROGRAM
 DESIGNED TO IDENTIFY AND MINIMIZE THE RISKS OF MUSCULOSKELETAL  INJURIES
 AND  DISORDERS  AMONG  WORKERS  INVOLVED  IN PERFORMING MANUAL MATERIALS
 HANDLING TASKS. THE PROGRAM SHALL INCLUDE: WORKSITE EVALUATION;  CONTROL
 OF EXPOSURES, INCLUDING PACE, WHICH HAVE CAUSED OR HAVE THE POTENTIAL TO
 CAUSE MUSCULOSKELETAL INJURIES AND DISORDERS; EMPLOYEE TRAINING; MEDICAL
 MANAGEMENT; AND EMPLOYEE INVOLVEMENT.
   1.  THE  EMPLOYER SHALL ASSURE THAT EACH JOB, PROCESS, OR OPERATION OF
 WORK ACTIVITY COVERED BY THIS SECTION OR A REPRESENTATIVE NUMBER OF SUCH
 JOBS, PROCESSES, OR OPERATIONS OF IDENTICAL WORK ACTIVITIES SHALL HAVE A
 WRITTEN WORK SITE EVALUATION BY A QUALIFIED ERGONOMIST FOR RISK  FACTORS
 WHICH  HAVE  OR  ARE LIKELY TO CAUSE MUSCULOSKELETAL INJURIES AND DISOR-
 DERS.  SUCH RISK FACTORS SHALL INCLUDE, BUT ARE NOT  LIMITED  TO,  RAPID
 PACE,  FORCEFUL  EXERTIONS,  REPETITIVE  MOTIONS, TWISTING, BENDING, AND
 AWKWARD POSTURES AND COMBINATIONS THEREOF THAT HAD CAUSED OR ARE  LIKELY
 TO CAUSE MUSCULOSKELETAL INJURIES AND DISORDERS.
   (A)  ANY WORKSITE EVALUATIONS SHALL ALSO DETERMINE WHETHER ANY EMPLOY-
 EES EXPOSED TO SUCH RISK FACTORS ARE SUBJECT TO EITHER PERSONNEL  ACTION
 WITH  THE POTENTIAL FOR ADVERSE ACTION, OR ADVERSE ACTION OR TERMINATION
 THEMSELVES, ARISING IN WHOLE OR IN PART FROM AN EMPLOYER'S USE OF QUOTAS
 TO DETERMINE EMPLOYEE ASSIGNMENTS.
   (B) ALL SUCH WORKSITE EVALUATIONS SHALL  OBTAIN  RECOMMENDATIONS  FROM
 WORKERS  WHO  REGULARLY  PERFORM THOSE JOBS ON THE POSSIBLE RISK FACTORS
 AND ANY WORKPLACE CHANGES THAT CAN REDUCE SUCH RISK FACTORS.
   (C) COPIES OF SUCH WORKSITE RISK  FACTOR  EVALUATIONS  SHALL  BE  MADE
 AVAILABLE TO WORKERS AND THEIR REPRESENTATIVES UPON REQUEST, AT NO COST,
 WITHIN  ONE  BUSINESS  DAY  OF SUCH REQUEST. WORKERS AND THEIR REPRESEN-
 TATIVE SHALL BE NOTIFIED IN WRITING OF THE RESULTS OF THE WORKSITE EVAL-
 UATION. EMPLOYERS SHALL MAINTAIN ACCESSIBLE COPIES OF  SUCH  EVALUATIONS
 AT  LOCATIONS  WITHIN  THE  WAREHOUSE AND SHALL MAKE SUCH COPIES READILY
 AVAILABLE TO WORKERS.
   (D) AN INITIAL WORKSITE EVALUATION SHALL  BE  CONDUCTED  WITHIN  THREE
 MONTHS  AFTER  THE  EFFECTIVE DATE OF THIS ARTICLE. WORKSITE EVALUATIONS
 SHALL BE REVIEWED AND UPDATED AT LEAST ANNUALLY THEREAFTER. A NEW ANALY-
 SIS OF RISK FACTORS SHALL BE CONDUCTED IN ACCORDANCE WITH THE PROVISIONS
 OF THE OPENING PARAGRAPH OF THIS SUBDIVISION WHENEVER A NEW  JOB,  PROC-
 ESS,  OR  OPERATION  IS INTRODUCED WHICH COULD INCREASE THE RISK FACTORS
 FOR MUSCULOSKELETAL INJURIES AND DISORDERS. SUCH NEW ANALYSIS  SHALL  BE
 CONDUCTED WITHIN THIRTY DAYS OF THE CREATION OR CHANGE OF A JOB, PROCESS
 OR OPERATION.
   (E)  WITHIN  THREE  MONTHS  OF THE EFFECTIVE DATE OF THIS ARTICLE, THE
 COMMISSIONER SHALL FORM A TASK FORCE CHAIRED BY  A  RECOGNIZED  ACADEMIC
 LEADER  IN  THE FIELD OF ERGONOMICS IN NEW YORK STATE AND INCLUDING, BUT
 NOT LIMITED TO, REPRESENTATIVES  FROM  THE  WAREHOUSE  WORKFORCE,  LABOR
 ORGANIZATIONS  ACTIVE  IN THE WAREHOUSING INDUSTRY, AND EMPLOYERS IN THE
 INDUSTRY, TO RECOMMEND THE CORE COMPETENCIES REQUIRED  FOR  THE  CERTIF-
 ICATION  OF  QUALIFIED  ERGONOMISTS.  WITHIN SIX MONTHS OF THE EFFECTIVE
 DATE OF THIS ARTICLE, THE COMMISSIONER SHALL ADOPT A STANDARD AND  PROC-
 A. 10020                            6
 
 ESS FOR CERTIFYING QUALIFIED ERGONOMISTS BASED ON THE RECOMMENDATIONS OF
 THE TASK FORCE.
   2.  THE  EMPLOYER  SHALL  CORRECT  IN A TIMELY MANNER ANY RISK FACTORS
 IDENTIFIED AS HAVING CAUSED OR BEING  LIKELY  TO  CAUSE  MUSCULOSKELETAL
 INJURIES  AND  DISORDERS.  FOR  ANY  CORRECTIONS WHICH REQUIRE MORE THAN
 THIRTY DAYS TO COMPLETE, THE  EMPLOYER  SHALL  REVISE,  AS  NEEDED,  AND
 PROVIDE A SCHEDULE FOR SUCH PROPOSED CORRECTIONS. SUCH SCHEDULE SHALL BE
 INCLUDED  IN  THE  EVALUATIONS  PROVIDED  TO WORKERS AND THEIR REPRESEN-
 TATIVES.
   (A) WHERE THE EMPLOYER DEMONSTRATES THAT IT  IS  UNABLE  TO  ELIMINATE
 IDENTIFIED  RISK  FACTORS,  THE EMPLOYER SHALL MINIMIZE THE EXPOSURES TO
 THE EXTENT FEASIBLE.
   (B) IN REDUCING RISK FACTORS, THE EMPLOYER SHALL CONSIDER:
   (I) ENGINEERING CONTROLS  AND  REDESIGNING  WORK  STATIONS  TO  CHANGE
 SHELVING HEIGHTS, PROVIDE ADJUSTABLE FIXTURES OR TOOL REDESIGN; AND
   (II)  ADMINISTRATIVE  CONTROLS, SUCH AS JOB ROTATION WHICH REDUCES THE
 EXPOSURE TO RISK FACTORS, REDUCED WORK PACING OR ADDITIONAL WORK BREAKS.
   (C) EMPLOYERS SHALL MAINTAIN RECORDS OF STEPS TAKEN  TO  ELIMINATE  OR
 REDUCE RISK FACTORS AND SHALL MAKE COPIES AVAILABLE TO WORKERS AND THEIR
 REPRESENTATIVES UPON REQUEST.
   3.  ALL  EMPLOYERS  COVERED  BY  THIS  SECTION  SHALL  PROVIDE  INJURY
 REDUCTION TRAINING TO ALL EMPLOYEES INVOLVED IN PERFORMING MANUAL  MATE-
 RIALS  HANDLING JOBS AND TASKS AT THE WAREHOUSE DURING NORMAL WORK HOURS
 AND WITHOUT SUFFERING A LOSS OF PAY. SUCH TRAINING SHALL BE PROVIDED  IN
 A  LANGUAGE  AND  VOCABULARY  THAT  THE  WORKERS UNDERSTAND AND SHALL BE
 REPEATED ANNUALLY. THE TRAINING SHALL ALSO BE PROVIDED TO  THE  WORKERS'
 SUPERVISORS. SUCH TRAINING SHALL BE IN ADDITION TO THE TRAINING REQUIRED
 UNDER SECTION TWENTY-SEVEN-D OF THIS CHAPTER AND SHALL INCLUDE:
   (A)  THE  EARLY SYMPTOMS OF MUSCULOSKELETAL INJURIES AND DISORDERS AND
 THE IMPORTANCE OF EARLY DETECTION;
   (B) MUSCULOSKELETAL INJURY AND DISORDER RISK FACTORS AND EXPOSURES  AT
 WORK, INCLUDING THE HAZARDS POSED BY EXCESSIVE RATES OF WORK;
   (C)  METHODS  TO  REDUCE RISK FACTORS FOR MUSCULOSKELETAL INJURIES AND
 DISORDERS,  INCLUDING  BOTH  ENGINEERING  CONTROLS  AND   ADMINISTRATIVE
 CONTROLS,  SUCH  AS LIMITATIONS ON WORK PACE AND INCREASED SCHEDULED AND
 UNSCHEDULED BREAKS;
   (D) THE EMPLOYER'S PROGRAM TO IDENTIFY RISK FACTORS AS REQUIRED  UNDER
 THIS SECTION AND PREVENT MUSCULOSKELETAL INJURIES AND DISORDERS, INCLUD-
 ING  THE SUMMARY PROTOCOLS FOR MEDICAL TREATMENT APPROVED BY THE EMPLOY-
 ER'S MEDICAL CONSULTANT;
   (E) THE RIGHTS AND FUNCTION OF WORKPLACE SAFETY COMMITTEES ESTABLISHED
 UNDER SECTION TWENTY-SEVEN-D OF THIS CHAPTER AND THE RIGHTS OF EMPLOYEES
 TO REPORT ANY RISK FACTORS, OTHER HAZARDS, INJURIES OR HEALTH AND SAFETY
 CONCERNS; AND
   (F) TRAINING ON THE UNLAWFUL RETALIATION  OF  ANY  PROVISION  IN  THIS
 SECTION, INCLUDING THE DISCIPLINARY ACTIONS REQUIRED WHEN SUPERVISORS OR
 MANAGERS  VIOLATE  THE  LAW  OR POLICY, AS WELL AS THE EMPLOYER'S POLICY
 PROHIBITING ANY WORKPLACE DISCRIMINATION.
   4. ANY ON-SITE MEDICAL OFFICE OR FIRST AID STATION THAT  SEES  WORKERS
 IN  WAREHOUSES  COVERED BY THIS SECTION WITH SYMPTOMS OF MUSCULOSKELETAL
 INJURIES AND DISORDERS SHALL BE STAFFED WITH MEDICAL PROFESSIONALS OPER-
 ATING WITHIN THEIR LEGAL SCOPE OF PRACTICE.
   (A) EMPLOYERS SHALL ASSURE THAT STAFFING AND THE PRACTICE OF ANY FIRST
 AID OR MEDICAL STATION MEETS STATE  REQUIREMENTS  FOR  PHYSICIAN  SUPER-
 VISION  OF  NURSES, EMERGENCY MEDICAL TECHNICIANS OR OTHER NON-PHYSICIAN
 PERSONNEL.
 A. 10020                            7
 
   (B) IN ALL WAREHOUSES WHERE EMPLOYERS REQUIRE THAT WORKERS WITH  SIGNS
 AND  SYMPTOMS  OF  MUSCULOSKELETAL INJURIES AND DISORDERS SHALL FIRST BE
 SEEN BY AN ON-SITE MEDICAL OR FIRST AID PROVIDER OR HAVE THE APPROVAL OF
 THE EMPLOYER PRIOR TO BEING SENT TO A DOCTOR, THE EMPLOYER SHALL CONSULT
 WITH  A  MEDICAL  CONSULTANT WHO IS LICENSED BY NEW YORK STATE AND BOARD
 CERTIFIED IN OCCUPATIONAL MEDICINE.
   (I) THE EMPLOYER SHALL OBTAIN FROM THE MEDICAL  CONSULTANT  A  WRITTEN
 EVALUATION  OF  THE MEDICAL MANAGEMENT PROGRAM AND PROTOCOLS FOLLOWED IN
 THE WAREHOUSE FOR IDENTIFICATION AND TREATMENT OF MUSCULOSKELETAL  INJU-
 RIES  AND  DISORDERS AND SHALL INCLUDE RECOMMENDATIONS TO ENSURE COMPLI-
 ANCE WITH ACCEPTED MEDICAL PRACTICE OF  THE  STAFFING,  SUPERVISION  AND
 DOCUMENTATION OF MEDICAL TREATMENT PROTOCOLS.
   (II)  THE  EMPLOYER SHALL OBTAIN FROM THE MEDICAL CONSULTANT A SUMMARY
 OF TREATMENT PROTOCOLS SUITABLE FOR WORKER PATIENTS COVERING ALL ASPECTS
 OF THE MEDICAL MANAGEMENT PRACTICES, FROM EARLY DETECTION OF  MUSCULOSK-
 ELETAL  INJURIES  AND DISORDERS THROUGH EVALUATION BY A QUALIFIED PHYSI-
 CIAN  AND  PHYSICIAN  PROVISION  OF  APPROPRIATE  WORK  RESTRICTIONS  IN
 LANGUAGES UNDERSTOOD BY THE EMPLOYEES.
   (III)  THE  EMPLOYER  SHALL ENSURE THAT THE MEDICAL CONSULTANT REVIEWS
 THE PREVIOUS MEDICAL CONSULTANT EVALUATION, RELATED MATERIALS AND PROTO-
 COLS ON AN ANNUAL BASIS, AND RECOMMENDS CHANGES AS APPROPRIATE.
   (IV) THE EMPLOYER SHALL ASSURE THAT ALL DESIGNATED MEDICAL  AND  FIRST
 AID  PROVIDERS HAVE OBSERVED, IN PERSON, THE JOBS INVOLVING MANUAL MATE-
 RIALS HANDLING WITHIN THE WAREHOUSE AND ALL RISK FACTORS  IDENTIFIED  IN
 THE EVALUATION CONDUCTED UNDER THE MEDICAL CONSULTANT EVALUATION.
   (C)  THERE SHALL BE NO UNNECESSARY DELAYS IN THE PROVISION OF ADEQUATE
 MEDICAL CARE TO WORKERS WHO  REPORT  INJURIES  TO  THE  ON-SITE  MEDICAL
 SERVICES.
   (D)  EACH  EMPLOYER  SHALL  ENSURE  THAT  NO SUPERVISORY OR MANAGERIAL
 EMPLOYEE  OR  OTHER  PERSON  DISCRIMINATES  OR  RETALIATES  AGAINST  ANY
 CURRENT, FORMER, OR PROSPECTIVE EMPLOYEE OR OTHER PERSON FOR REPORTING A
 WORK-RELATED INJURY OR ILLNESS, OR HEALTH AND SAFETY CONCERN.
   5.  EMPLOYERS  SHALL ASSURE THAT EMPLOYEES AND THEIR DESIGNATED REPRE-
 SENTATIVES ARE CONSULTED BOTH BEFORE  AND  DURING  THE  DEVELOPMENT  AND
 IMPLEMENTATION  OF  ALL  ASPECTS  OF  THE  PROGRAM. WHERE EMPLOYEES HAVE
 ESTABLISHED A WORKPLACE SAFETY  COMMITTEE  IN  COMPLIANCE  WITH  SECTION
 TWENTY-SEVEN-D  OF  THIS  CHAPTER,  THE  EMPLOYER  SHALL ASSURE THAT THE
 COMMITTEE IS CONSULTED REGARDING THE DEVELOPMENT AND  IMPLEMENTATION  OF
 ALL  ASPECTS  OF THE INJURY REDUCTION PROGRAM. ANY RECORD CREATED BY THE
 EMPLOYER ACCORDING TO THIS SECTION SHALL BE PROVIDED  TO  THE  WORKPLACE
 SAFETY  COMMITTEE  PRIOR  TO  CONSULTATION.  ALL  DOCUMENTS  PROVIDED TO
 EMPLOYEES SHALL BE PROVIDED IN WRITING IN ENGLISH AND  IN  THE  LANGUAGE
 IDENTIFIED BY EACH EMPLOYEE AS THE PRIMARY LANGUAGE OF SUCH EMPLOYEE.
   §  786.  UNLAWFUL RETALIATION. 1. NO PERSON, INCLUDING BUT NOT LIMITED
 TO AN EMPLOYER, HIS OR HER AGENT, OR PERSON ACTING AS OR ON BEHALF OF  A
 HIRING  ENTITY,  OR THE OFFICER OR AGENT OF ANY ENTITY, BUSINESS, CORPO-
 RATION, PARTNERSHIP, OR LIMITED LIABILITY COMPANY, SHALL DISCHARGE OR IN
 ANY WAY RETALIATE, DISCRIMINATE  OR  TAKE  ADVERSE  ACTION  AGAINST  ANY
 PERSON  FOR  EXERCISING  ANY RIGHTS CONFERRED UNDER THIS ARTICLE, OR FOR
 BEING PERCEIVED AS EXERCISING RIGHTS CONFERRED BY THIS ARTICLE,  INCLUD-
 ING BUT NOT LIMITED TO:
   (A)  INITIATING  A  REQUEST  FOR INFORMATION ABOUT A QUOTA OR PERSONAL
 WORK SPEED DATA PURSUANT TO PARAGRAPH (A) OF SUBDIVISION ONE OF  SECTION
 SEVEN HUNDRED EIGHTY-FOUR OF THIS ARTICLE.
   (B)  MAKING  A  COMPLAINT RELATED TO A QUOTA ALLEGING ANY VIOLATION OF
 SECTION  SEVEN  HUNDRED  EIGHTY-ONE,  SEVEN  HUNDRED  EIGHTY-TWO,  SEVEN
 A. 10020                            8
 
 HUNDRED  EIGHTY-THREE,  OR  SEVEN HUNDRED EIGHTY-FOUR OF THIS ARTICLE TO
 THE COMMISSIONER, ANY OTHER LOCAL, STATE, OR FEDERAL GOVERNMENTAL AGENCY
 OR OFFICIAL, OR THE EMPLOYER.
   (C) MAKING A COMPLAINT RELATED TO SECTION SEVEN HUNDRED EIGHTY-FIVE OF
 THIS ARTICLE.
   2. AN EMPLOYEE NEED NOT EXPLICITLY REFER TO THIS ARTICLE OR THE RIGHTS
 ENUMERATED HEREIN TO BE PROTECTED FROM AN ADVERSE ACTION. PROTECTIONS OF
 THIS  SECTION  SHALL  APPLY  TO  FORMER  EMPLOYEES  AND TO EMPLOYEES WHO
 MISTAKENLY BUT IN GOOD FAITH ALLEGE VIOLATIONS OF THIS ARTICLE.
   3. IF A PERSON TAKES ADVERSE ACTION AGAINST AN EMPLOYEE WITHIN  NINETY
 DAYS  OF  THE  EMPLOYEE'S ENGAGING OR ATTEMPTING TO ENGAGE IN ACTIVITIES
 PROTECTED BY  THIS  ARTICLE,  SUCH  CONDUCT  SHALL  RAISE  A  REBUTTABLE
 PRESUMPTION  THAT  THE  ACTION IS AN ADVERSE ACTION IN VIOLATION OF THIS
 ARTICLE. 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
 THIS ARTICLE WAS NOT A MOTIVATING FACTOR IN THE ADVERSE ACTION.
   §  787.  SUBPOENA. UPON RECEIVING A COMPLAINT REGARDING A VIOLATION OF
 THIS ARTICLE, THE COMMISSIONER MAY REQUEST OR SUBPOENA EMPLOYER  RECORDS
 OR DATA RELATED TO THIS ARTICLE.
   § 788. ENFORCEMENT. 1. THE COMMISSIONER SHALL BE AUTHORIZED TO ENFORCE
 THE PROVISIONS OF THIS ARTICLE.
   2.  (A)  ANY EMPLOYEE OR REPRESENTATIVE OF EMPLOYEES WHO BELIEVES THAT
 AN EMPLOYER MAY VIOLATE THE REQUIREMENTS OF  THIS  ARTICLE  OR  THAT  AN
 IMMINENT  DANGER  EXISTS,  MAY REQUEST AN INSPECTION BY GIVING NOTICE TO
 THE COMMISSIONER OF SUCH VIOLATION OR DANGER. SUCH  NOTICE  AND  REQUEST
 SHALL:
   (I) BE IN WRITING, EITHER PHYSICAL OR ELECTRONIC;
   (II)  SET  FORTH  WITH  REASONABLE  PARTICULARITY  THE GROUNDS FOR THE
 NOTICE;
   (III) BE SIGNED BY THE EMPLOYEE OR REPRESENTATIVE OF EMPLOYEES;
   (IV) BE PROVIDED BY THE COMMISSIONER TO THE EMPLOYER OR THE PERSON  IN
 CHARGE NO LATER THAN THE TIME OF INSPECTION, EXCEPT THAT THE NAME OF THE
 PERSON  GIVING  NOTICE  TO  THE COMMISSIONER AND THE NAMES OF INDIVIDUAL
 EMPLOYEES OR REPRESENTATIVES OF EMPLOYEES SHALL BE WITHHELD UNLESS  SUCH
 EMPLOYEES  OR  REPRESENTATIVES  HAVE PROVIDED EXPRESS WRITTEN PERMISSION
 FOR SUCH INFORMATION TO BE SHARED.
   (B) INSPECTIONS PURSUANT TO THIS  SUBDIVISION  SHALL  BE  MADE  WITHIN
 THREE DAYS OF RECEIPT OF NOTICE BY THE COMMISSIONER.
   3.  A  REPRESENTATIVE OF THE EMPLOYER AND A DESIGNATED EMPLOYEE REPRE-
 SENTATIVE SHALL BE GIVEN THE OPPORTUNITY TO ACCOMPANY  THE  COMMISSIONER
 DURING  AN INSPECTION FOR THE PURPOSE OF AIDING SUCH INSPECTION. A LABOR
 UNION HAVING A COLLECTIVE  BARGAINING  RELATIONSHIP  WITH  THE  EMPLOYER
 SHALL  BE CONSIDERED AN EMPLOYEE REPRESENTATIVE FOR THE PURPOSES OF THIS
 SECTION. WHERE THERE  IS  NO  DESIGNATED  EMPLOYEE  REPRESENTATIVE,  THE
 COMMISSIONER  SHALL  CONSULT  WITH  A  REASONABLE  NUMBER  OF  EMPLOYEES
 CONCERNING MATTERS OF SAFETY AND HEALTH IN THE WORKPLACE.
   4. THE AUTHORITY OF THE COMMISSIONER TO INSPECT PREMISES  PURSUANT  TO
 AN  EMPLOYEE  COMPLAINT  SHALL  NOT  BE LIMITED TO THE ALLEGED VIOLATION
 CONTAINED IN SUCH COMPLAINT. THE COMMISSIONER MAY INSPECT ANY OTHER AREA
 OF THE PREMISES IN WHICH  HE  OR  SHE  HAS  REASON  TO  BELIEVE  THAT  A
 VIOLATION OF THIS ARTICLE EXISTS.
   5.  NO  EMPLOYEE OR DESIGNATED EMPLOYEE REPRESENTATIVE WHO ACCOMPANIES
 THE COMMISSIONER ON AN INSPECTION SHALL SUFFER ANY REDUCTION IN WAGES AS
 A RESULT OF HIS OR HER PARTICIPATION IN SUCH INSPECTION.
 A. 10020                            9
 
   6. THE COMMISSIONER MAY, UPON HIS OR HER OWN  INITIATIVE,  CONDUCT  AN
 INSPECTION  OF  ANY PREMISES OCCUPIED BY AN EMPLOYER IF THE COMMISSIONER
 HAS REASON TO BELIEVE THAT A VIOLATION OF THIS ARTICLE HAS  OCCURRED  OR
 IF THE COMMISSIONER HAS A BASIS FOR SUCH INSPECTION.
   7.  NOTWITHSTANDING ANY OTHER PROVISIONS OF LAW, WHEN A REQUEST FOR AN
 INSPECTION HAS BEEN MADE IN A SITUATION WHERE THERE IS AN ALLEGATION  OF
 AN  IMMINENT DANGER SUCH THAT AN EMPLOYEE WOULD BE SUBJECTING HIMSELF OR
 HERSELF TO SERIOUS INJURY OR DEATH BECAUSE OF THE HAZARDOUS CONDITION IN
 THE WORKPLACE, THE INSPECTION SHALL BE CARRIED OUT IMMEDIATELY.
   8. IF THE COMMISSIONER DETERMINES THAT  AN  EMPLOYER  HAS  VIOLATED  A
 PROVISION  OF THIS ARTICLE, OR A SAFETY OR HEALTH STANDARD OR REGULATION
 PROMULGATED PURSUANT TO THIS ARTICLE, HE OR SHE SHALL, WITHIN SIX MONTHS
 OF BECOMING AWARE OF SUCH VIOLATION, ISSUE TO THE EMPLOYER AN  ORDER  TO
 COMPLY  WHICH  SHALL  DESCRIBE PARTICULARLY THE NATURE OF THE VIOLATION,
 INCLUDING A REFERENCE TO THE PROVISION OF THE SECTION,  STANDARD,  REGU-
 LATION OR ORDER ALLEGED TO HAVE BEEN VIOLATED, FIX A REASONABLE TIME FOR
 COMPLIANCE, AND ESTABLISH A PENALTY EQUIVALENT TO THE APPROPRIATE PENAL-
 TIES  REQUIRED PURSUANT TO SECTION 17 OF THE FEDERAL OCCUPATIONAL SAFETY
 AND HEALTH ACT (29 USC 666). AN EMPLOYER WHO FAILS TO CORRECT A NON-SER-
 IOUS VIOLATION BY THE TIME FIXED FOR COMPLIANCE MAY BE ASSESSED A  CIVIL
 PENALTY PURSUANT TO 29 USC 666 PER DAY UNTIL THE VIOLATION IS CORRECTED.
 AN  EMPLOYER  WHO FAILS TO CORRECT A SERIOUS VIOLATION BY THE TIME FIXED
 FOR COMPLIANCE MAY BE ASSESSED A CIVIL PENALTY PURSUANT TO  29  USC  666
 UNTIL THE VIOLATION IS CORRECTED. A SERIOUS VIOLATION SHALL BE DEEMED TO
 EXIST  IN  A  PLACE  OF EMPLOYMENT IF THERE IS A SUBSTANTIAL PROBABILITY
 THAT DEATH OR SERIOUS PHYSICAL HARM COULD RESULT FROM A CONDITION  WHICH
 EXISTS  OR  FROM  ONE  OR MORE PRACTICES, MEANS, METHODS, OPERATIONS, OR
 PROCESSES WHICH HAVE BEEN ADOPTED OR ARE IN USE IN SUCH PLACE OF EMPLOY-
 MENT UNLESS THE EMPLOYER DID NOT, AND COULD NOT  WITH  THE  EXERCISE  OF
 REASONABLE DILIGENCE, KNOW OF THE PRESENCE OF THE VIOLATION. A NON-SERI-
 OUS VIOLATION SHALL BE DEFINED AS ANY VIOLATION THAT DOES NOT FALL UNDER
 THE DEFINITION OF SERIOUS VIOLATION.
   9.  WHERE  THE  COMMISSIONER ISSUES TO AN EMPLOYER AN ORDER TO COMPLY,
 THE EMPLOYER SHALL POST SUCH ORDER OR A COPY THEREOF  IN  A  CONSPICUOUS
 PLACE  AT  OR NEAR EACH PLACE OF VIOLATION CITED IN THE ORDER. THE ORDER
 SHALL BE PLACED WHERE IT IS CLEARLY VISIBLE TO  AFFECTED  EMPLOYEES  AND
 COPIES SHALL BE PROVIDED TO EMPLOYEES, ON REQUEST, AND TO THE DESIGNATED
 REPRESENTATIVES  OF  ALL AFFECTED EMPLOYEES. THE COMMISSIONER SHALL MAKE
 SUCH ORDER AVAILABLE TO EMPLOYEE REPRESENTATIVES  AND  PROVIDE  A  PLAIN
 ENGLISH SUMMARY OF THE ORDER TO ALL WORKERS.
   10.  ANY  EMPLOYER  OR  OTHER PARTY AFFECTED BY A DETERMINATION OF THE
 COMMISSIONER ISSUED PURSUANT TO THIS SECTION, INCLUDING AFFECTED EMPLOY-
 EES AND THEIR DESIGNATED REPRESENTATIVES, MAY  PETITION  THE  INDUSTRIAL
 BOARD  OF  APPEALS  FOR  REVIEW OF SUCH DETERMINATION IN ACCORDANCE WITH
 SECTION ONE HUNDRED ONE OF THIS CHAPTER. JUDICIAL REVIEW OF THE DECISION
 OF THE INDUSTRIAL BOARD OF APPEALS MAY BE OBTAINED BY ANY PARTY AFFECTED
 BY SUCH DECISION BY COMMENCING A PROCEEDING PURSUANT TO  ARTICLE  SEVEN-
 TY-EIGHT  OF  THE  CIVIL  PRACTICE LAW AND RULES WITHIN SIXTY DAYS AFTER
 SUCH DECISION IS ISSUED. AN APPEAL OF ANY VIOLATION CLASSIFIED AND CITED
 AS SERIOUS, WILLFUL, REPEATED SERIOUS VIOLATION, OR FAILURE TO  ABATE  A
 SERIOUS  VIOLATION  SHALL  NOT  STAY  ABATEMENT  DATES AND REQUIREMENTS.
 EMPLOYEES AFFECTED BY THE VIOLATION COVERED BY SUCH DETERMINATION  SHALL
 BE GRANTED STATUS AS PARTIES TO: PARTICIPATE IN THE BOARD'S PROCEEDINGS;
 REVIEW  ANY  ASPECT OF THE COMMISSIONER'S DETERMINATIONS; AND REQUEST OF
 THE ISSUANCE  OF  SUBPOENAS  TO  COMPEL  THE  ATTENDANCE  OF  WITNESSES,
 PRODUCTION  OF DOCUMENTS, PERMISSION TO ENTER UPON LAND, INTERROGATORIES
 A. 10020                           10
 
 AND DEPOSITIONS FROM AFFECTED EMPLOYERS AND FROM THE DEPARTMENT PURSUANT
 TO SECTION ONE HUNDRED OF THIS  CHAPTER.  THE  BOARD  SHALL  GRANT  SUCH
 REQUESTS  EXCEPT  THAT  REQUESTS FOR DEPOSITIONS SHALL BE GRANTED BY THE
 BOARD UPON A REQUEST STATING GOOD AND JUST REASONS.
   11.  IF  THE  TIME  FOR  COMPLIANCE  WITH AN ORDER OF THE COMMISSIONER
 ISSUED PURSUANT TO THIS SECTION HAS ELAPSED AND  THE  EMPLOYER  HAS  NOT
 COMPLIED  WITH  THE PROVISIONS OF THE ORDER, THE COMMISSIONER SHALL SEEK
 JUDICIAL ENFORCEMENT OF SUCH ORDER BY COMMENCING A  PROCEEDING  PURSUANT
 TO ARTICLE SEVENTY-EIGHT OF THE CIVIL PRACTICE LAW AND RULES.
   12. (A) THE STATE SUPREME COURT SHALL HAVE JURISDICTION, UPON PETITION
 OF  THE  COMMISSIONER,  PURSUANT  TO THE CIVIL PRACTICE LAW AND RULES TO
 RESTRAIN ANY VIOLATIONS, CONDITIONS  OR  PRACTICES  PROHIBITED  BY  THIS
 ARTICLE  IN  ANY  EMPLOYER COVERED BY THIS ARTICLE WHICH ARE SUCH THAT A
 DANGER EXISTS WHICH COULD REASONABLY BE EXPECTED TO CAUSE DEATH OR SERI-
 OUS PHYSICAL HARM IMMEDIATELY OR BEFORE THE IMMINENCE OF SUCH DANGER CAN
 BE ELIMINATED THROUGH THE ABATEMENT PROCEDURES OTHERWISE PROVIDED FOR BY
 THIS ARTICLE. SUCH PROCEEDING SHALL BE BROUGHT IN THE  COUNTY  IN  WHICH
 THE  VIOLATION  IS ALLEGED TO EXIST. ANY ORDER ISSUED UNDER THIS SECTION
 MAY REQUIRE SUCH STEPS TO BE TAKEN AS MAY BE NECESSARY TO AVOID, CORRECT
 OR REMOVE SUCH IMMINENT DANGER AND PROHIBIT THE EMPLOYMENT  OR  PRESENCE
 OF  ANY  INDIVIDUAL IN LOCATIONS OR UNDER CONDITIONS WHERE SUCH IMMINENT
 DANGER EXISTS, EXCEPT INDIVIDUALS WHOSE PRESENCE IS NECESSARY TO  AVOID,
 CORRECT, OR REMOVE SUCH IMMINENT DANGER OR TO MAINTAIN THE CAPACITY OF A
 CONTINUOUS  PROCESS  OPERATION  TO  RESUME  NORMAL  OPERATIONS WITHOUT A
 COMPLETE CESSATION OF OPERATIONS, OR WHERE A CESSATION OF OPERATIONS  IS
 NECESSARY,  TO  PERMIT  SUCH  TO  BE  ACCOMPLISHED IN A SAFE AND ORDERLY
 MANNER. THE EMPLOYER MAY CONTEST SUCH ORDER PURSUANT TO THE CIVIL  PRAC-
 TICE LAW AND RULES.
   (B)  WHENEVER AND AS SOON AS AN INSPECTOR CONCLUDES THAT CONDITIONS OR
 PRACTICES DESCRIBED IN PARAGRAPH (A) OF THIS SUBDIVISION  EXIST  IN  ANY
 PLACE  OF EMPLOYMENT COVERED BY THIS ARTICLE, THE INSPECTOR SHALL INFORM
 THE AFFECTED EMPLOYEES AND EMPLOYERS OF THE DANGER AND OF THE  RECOMMEN-
 DATION TO THE COMMISSIONER THAT RELIEF BE SOUGHT.
   (C)  IF  THE  COMMISSIONER FAILS TO SEEK RELIEF UNDER THIS SUBDIVISION
 WITHIN FORTY-EIGHT HOURS  OF  BEING  NOTIFIED  OF  SUCH  CONDITION,  ANY
 EMPLOYEE WHO MAY BE INJURED BY REASON OF SUCH FAILURE, OR THE AUTHORIZED
 EMPLOYEE  REPRESENTATIVE OF SUCH EMPLOYEE, MAY SEEK INJUNCTIVE RELIEF AS
 PROVIDED IN PARAGRAPH (A) OF THIS SUBDIVISION.
   13. THE COMMISSIONER SHALL PROVIDE A REPORT  TO  THE  LEGISLATURE  ONE
 YEAR  AFTER THE EFFECTIVE DATE OF THIS SECTION, AND ANNUALLY THEREAFTER.
 THE REPORT SHALL INCLUDE ALL RELEVANT INFORMATION REGARDING  IMPLEMENTA-
 TION  AND  ENFORCEMENT OF THIS ARTICLE, INCLUDING BUT NOT LIMITED TO THE
 NUMBER OF CLAIMS FILED WITH THE COMMISSIONER UNDER THIS ARTICLE, DATA ON
 WAREHOUSE PRODUCTION QUOTAS IN WAREHOUSES IN WHICH ANNUAL EMPLOYEE INJU-
 RY RATES ARE ABOVE THE INDUSTRY AVERAGE,  AND  THE  NUMBER  OF  INVESTI-
 GATIONS  UNDERTAKEN  AND ENFORCEMENT ACTIONS INITIATED, PER EMPLOYER AND
 PER WORKSITE.
   14. IF A PARTICULAR WORKSITE OR EMPLOYER IS FOUND TO  HAVE  AN  ANNUAL
 EMPLOYEE  INJURY  RATE  AT  LEAST  ONE AND ONE-HALF TIMES AS HIGH AS THE
 WAREHOUSING INDUSTRY'S AVERAGE  ANNUAL  INJURY  RATE,  THE  COMMISSIONER
 SHALL CONDUCT AN INVESTIGATION OF VIOLATIONS PURSUANT TO THIS ARTICLE.
   15. THE COMMISSIONER SHALL HAVE THE AUTHORITY TO ADOPT RULES AND REGU-
 LATIONS  RELATING  TO THE PROCEDURES FOR AN EMPLOYEE TO MAKE A COMPLAINT
 ALLEGING A VIOLATION OF THIS ARTICLE.
   16. IN ANY SUCCESSFUL ACTION BROUGHT BY THE  COMMISSIONER  TO  ENFORCE
 THIS  ARTICLE,  THE COURT MAY GRANT INJUNCTIVE RELIEF IN ORDER TO OBTAIN
 A. 10020                           11
 
 COMPLIANCE WITH THIS ARTICLE AND SHALL AWARD COSTS AND REASONABLE ATTOR-
 NEY'S FEES.
   § 789. PRIVATE RIGHT OF ACTION. A CURRENT OR FORMER EMPLOYEE OR HIS OR
 HER  REPRESENTATIVE  MAY BRING AN ACTION FOR INJUNCTIVE RELIEF TO OBTAIN
 COMPLIANCE WITH THIS ARTICLE AND MAY, UPON  PREVAILING  IN  THE  ACTION,
 RECOVER  COSTS  AND  REASONABLE  ATTORNEY'S  FEES IN SUCH ACTION. IN ANY
 ACTION INVOLVING A QUOTA THAT PREVENTED THE COMPLIANCE  WITH  APPLICABLE
 REGULATIONS  ON  WORKPLACE  SAFETY  AND  HEALTH  OR  MEAL  OR REST BREAK
 REQUIREMENTS, THE INJUNCTIVE RELIEF SHALL BE LIMITED  TO  SUSPENSION  OF
 THE  QUOTA  AND RESTITUTION AND INJUNCTIVE RELIEF TO ADDRESS ANY RETALI-
 ATION OR OTHER ADVERSE ACTION TAKEN BY THE EMPLOYER IN RELATION  TO  THE
 COMPLAINT  OR  ITS ENFORCEMENT. IN ANY ACTION INVOLVING A RETALIATION IN
 VIOLATION OF SECTION SEVEN HUNDRED EIGHTY-SIX OF THIS ARTICLE, IN  ADDI-
 TION  TO  THE  RELIEF  AUTHORIZED  ABOVE, A PREVAILING CURRENT OR FORMER
 EMPLOYEE OR HIS OR HER REPRESENTATIVE SHALL BE AWARDED DAMAGES EQUAL  TO
 THE  GREATER  OF TEN THOUSAND DOLLARS OR THREE TIMES THE ACTUAL DAMAGES,
 INCLUDING, BUT NOT LIMITED TO, UNPAID WAGES AND BENEFITS.
   § 790. RECORDS. ANY RECORDS COLLECTED BY THE  STATE  IN  ANY  INVESTI-
 GATIONS UNDER THIS ARTICLE SHALL BE MADE PUBLIC, WITHOUT ANY RESTRICTION
 REGARDING  CONFIDENTIALITY,  OTHER  THAN A RESTRICTION ON THE RELEASE OF
 PERSONALLY  IDENTIFIABLE  INFORMATION  FOR  INDIVIDUAL   NON-SUPERVISORY
 EMPLOYEES.  ALL  RECORDS  MAINTAINED  BY THE EMPLOYER UNDER THIS ARTICLE
 SHALL BE MADE FREELY AVAILABLE TO EMPLOYEES AND THEIR REPRESENTATIVES ON
 REQUEST, WITHIN TWO BUSINESS DAYS OF SUCH REQUEST, AT NO COST TO EMPLOY-
 EES OR THEIR REPRESENTATIVES.
   § 791. OTHER POWERS. THE ATTORNEY GENERAL, EITHER UPON HIS OR HER  OWN
 COMPLAINT  OR  THE  COMPLAINT OF ANY PERSON ACTING FOR THEMSELVES OR THE
 GENERAL PUBLIC, HAS THE AUTHORITY TO PROSECUTE ACTIONS, EITHER CIVIL  OR
 CRIMINAL,  FOR  VIOLATIONS OF THIS ARTICLE, OR TO ENFORCE THE PROVISIONS
 THEREOF INDEPENDENTLY AND WITHOUT SPECIFIC DIRECTION OF THE  COMMISSION-
 ER.
   § 4. Severability. If any provision of this act, or any application of
 any  provision of this act, is held to be invalid, that shall not affect
 the validity or effectiveness of any other provision of this act, or  of
 any  other  application of any provision of this act, which can be given
 effect without that provision or  application;  and  to  that  end,  the
 provisions and applications of this act are severable.
   §  5.  This  act  shall take effect on the sixtieth day after it shall
 have become a law.