UNDER PRESSURE: ADDRESSING WAREHOUSE PRODUCTIVITY QUOTAS AND THE RISE IN WORKPLACE INJURIES.

• Author: Gordon, Julia Lang

Introduction 150 I. The Relationship Between Productivity Quotas and Employee Injuries 153 II. Enabling Factors of the High Employee Injury Rates at Amazon Warehouses 157 A. Unrestricted Employee Surveillance 157 B. Employees Have Few Job Alternatives 159 C. The Ubiquity of At-Will Employment 162 D. OSHA's Limited Enforcement Capabilities 165 i. Occupational Safety and Health Act: A Primer 165 ii. OSHA's Attempt to Regulate Ergonomic Hazards 166 iii. OSHA's Limited Capacity and Ineffectual Penalties 168 III. How to Stop the Clock: Legislative and Regulatory Efforts to Reduce Warehouse Worker Injuries 170 A. Reform the OSH Act 170 i. Private Right of Action 170 ii. Greater Whistleblower Protections 172 B. Restricting the Quota Directly: California's State Assembly Bills 175 C. Restricting Electronic Monitoring in the Workplace: Massachusetts and Illinois Bills 178 i. The Massachusetts Approach 178 ii. The Illinois Approach 180 IV. A Way Forward via the Illinois Approach and the California Mandate 182 A. Electronic Monitoring and Just Cause 183 B. Critiques of a Just Cause Approach 185 C. Mandate to State OSHA to Promulgate Standards 187 Conclusion 188 INTRODUCTION

When the auto parts plant where he had worked for nine years closed down, Darryl Richardson was excited to land a job as a "picker" at an Amazon warehouse. (1) His excitement was short lived. Richardson found that the job required employees to work at a breakneck speed or risk termination. (2) He saw co-workers fired for failing to meet Amazon's productivity quotas, and Richardson himself was expected to pick 315 items per hour. (1) "I thought it would be different," Richardson said. (4) "You ain't got time to look around. You get treated like a number. You don't get treated like a person. They work you like a robot." (5)

Across the country, many companies hire warehouse workers, including "logistics companies" that help retailers like Disney or Verizon deliver their products to consumers/ (1) This Note mainly focuses on Amazon, as it employs more than one million people worldwide (7) and exerts huge influence in the warehouse industry. (8) While warehouse jobs are not new, Amazon has transformed the industry by subjecting its workers (9) to constant electronic monitoring and demanding productivity quotas, (10) leading to employee injury rates far above the national average. (11)

Amazon monitors its employees with an automated system that instructs them which items to pick and tracks their "time off task," such as using the restroom or pausing to drink water. (12) If too much time is spent off task, the system can automatically issue warnings and fire a worker without any human interaction. (13) Fearing termination for failing to meet their quota, employees work at dangerous speeds that put their health and safety at risk. (14) In 2019, the overall injury rate at Amazon warehouses was 7.7 serious injuries for every 100 employees, nearly double the industry average of four serious injuries for every 100 employees. (15) Amazon's fulfillment center in DuPont, Washington, had the highest 2019 injury rate of any Amazon warehouse in the country: 22 serious injuries per 100 employees, (16) which was more than five times the industry average. (17) Amazon has created a workplace where employees are forced to work at unsafe speeds that lead to physical harm.

Despite the severity of this problem, the Occupational Safety and Health Administration (OSHA), the federal agency tasked with regulating workplaces and reducing employee injuries, has failed to protect warehouse workers. (18) Between 2014 and 2019, OSHA inspected fewer than one quarter of Amazon warehouses, (19) and the financial penalties it issued have not changed the company's behavior. (20)

Over 25 states in the United States are home to Amazon warehouses. (21) Most states have not yet considered legislation to remedy the novel issue of high employee injury rates in Amazon warehouses, but a few, including California, Massachusetts, and Illinois, have proposed bills that would place restrictions on how warehouse employers can use productivity quotas. (22) This Note recommends that states adopt legislation resembling the Illinois approach, which both prohibits the use of data gathered through electronic monitoring from being the basis for employment decisions and creates an affirmative obligation on employers to have a good reason for firing employees. (23) This Note also advocates for a provision (24) of the California bill mandating that California's Division of Occupational Safety and Health (Cal/OSHA) promulgate standards aimed at reducing injuries among warehouse workers. (25) Such a mandate would create an opportunity for state OSHA agencies to promulgate standards directly targeting warehouse worker safety, (26) such as a requirement that workers are allowed a break to stretch once per hour. Of the strategies being considered by state legislatures, these two approaches taken together would be the most effective at restricting Amazon's ability to sustain an unsafe workplace.

Part I of this Note explains the relationship between productivity quotas at Amazon and employee injuries and describes the types of injuries employees typically sustain. Part II examines four factors that have enabled Amazon to continue to enforce productivity quotas without restriction, despite their having led to an increased rate of employee injuries. These factors are the limited regulation of employee surveillance, the lack of employment alternatives for warehouse workers, the ubiquity of at-will employment, and the limitations on OSHA's enforcement capabilities. Part III outlines scholars' recommendations for reforming the Occupational Safety and Health (OSH) Act, including a private right of action for workers and stronger whistleblower protections. Part III also reviews three bills introduced by state legislatures in California, Massachusetts, and Illinois that would provide for greater regulation of productivity quotas in warehouses and the mechanisms used to measure worker productivity. Part IV argues that the Illinois approach, combined with a specific mandate included in the proposed California bill, would afford the best protection to warehouse workers.

1. THE RELATIONSHIP BETWEEN PRODUCTIVITY QUOTAS AND EMPLOYEE INJURIES

   This Part traces the relationship between Amazon's productivity quotas and the high rate of employee injuries by describing how employees get injured, the type of injuries commonly sustained, and the lack of appropriate medical care at Amazon facilities.

   Employees at Amazon are required to meet assigned productivity quotas, a process known as "mak[ing] rate." (27) Rates can vary, but employees have reported being expected to scan over 300 items per hour. (28) According to a report published by Human Impact Partners and the Warehouse Worker Resource Center, "[e]xactly how Amazon determines work quotas remains unclear to many employees. Workers we spoke with expressed that their quotas seem to be arbitrary, fluctuating without warning based on task, day, and season." (29)

   What makes the productivity quota at Amazon warehouses most alarming is its relationship to workplace injuries. According to a report by the Athena Coalition that examined injury logs from 28 Amazon facilities in 16 states, the Total Recordable Injury Rate at the Amazon warehouses in 2018 was 10.76 per 100 full-time equivalent workers, which is three times as high as the injury rates across all private employers--2.8 recordable injuries per 100 employees. (10) Amazon employees are more likely to be injured at work than police officers, solid waste collectors, lumberjacks, or coal miners. (31)

   Over 75% of the injuries recorded in the injury logs examined by the Athena Coalition were musculoskeletal injuries, such as sprains, strains, and tears, with the most commonly injured body parts being workers' backs, shoulders, knees, wrists, ankles, and elbows. (32) These injuries are caused by ergonomic hazards, including forceful exertions, repetitive motions like twisting and bending, and awkward postures. (33) The risk of injury associated with these movements increases considerably with the pace of work. (34) The average injured Amazon worker in the Athena Coalition's sample was forced to miss six and a half weeks of work. (35)

   In 2019, The Atlantic interviewed several former Amazon warehouse employees about their workplace injuries. (36) One of those employees was Candace Dixon, who started working at Amazon in April of 2018. (37) Dixon worked at the warehouse in Eastvale, California, an Amazon warehouse with a serious injury rate more than four times the 2018 industry average. (38) After just two months, Dixon could no longer work at the warehouse due to her injuries. (34) An Amazon-approved doctor diagnosed her with a back sprain, joint inflammation, and chronic pain, and determined that her injuries were due to her job. (40) Months after leaving Amazon, Dixon could barely climb stairs, and getting out of a chair or walking her dog was still painful. (41) While Amazon does instruct employees on how to move their bodies and do their jobs safely, workers have complained that they regularly need to break these safety protocols to meet their quotas. (42) The Atlantic reported: "They would jump or stretch to reach a top rack instead of using a stepladder. They would twist and bend over to grab boxes instead of taking time to squat and lift with their legs.... They had to, they said, or they would lose their jobs." (43)

   In addition to ergonomic injuries, employees have also reported getting urinary tract infections because they do not have time to use the restroom. (44) During a ten-hour shift, an employee only has one half-hour break and two 15-minute breaks, (45) and any trips to the restroom outside of these designated breaks count against the time workers have to meet their quotas. (46) Restrooms at Amazon warehouses...