Unsafe and Untenable: Examining Workplace Protections for Warehouse Workers (U.S. House Committee on Education and Labor, Subcommittee on Workforce Protections)

Hearing	Unsafe and Untenable: Examining Workplace Protections for Warehouse Workers
Committee	U.S. House Committee on Education and Labor, Subcommittee on Workforce Protections
Date	November 17, 2022

 

Hearing Takeaways:

• Worker Health and Safety in the U.S. Warehousing Industry: The hearing focused on the current state of worker health and safety in the U.S. warehousing industry and on ways to improve warehouse worker health and safety. Subcommittee Members and the hearing’s witnesses highlighted how the U.S. warehousing industry had grown significantly over the previous two decades and how the COVID-19 pandemic had further accelerated this growth. Subcommittee Democrats, Mr. Kaoosji, Mr. Frumin, and Ms. Caicedo expressed concerns over the U.S. warehousing industry’s higher workplace injury and illness rates relative to other industries and called for the adoption of additional warehouse worker protections. Subcommittee Republicans and Mr. Rath argued that the U.S. warehousing industry had made significant progress in terms of reducing workplace injuries and illnesses over the previous decade and that private sector employers had natural incentives to work to prevent and reduce workplace injuries and illnesses.  Subcommittee Republicans further argued that that Subcommittee Democrats were using the issue of warehouse safety to pursue a larger goal of increasing the number of workers in labor unions.
  • Safety Concerns Regarding Amazon: Subcommittee Democrats, Mr. Kaoosji, Mr. Frumin. And Ms. Caicedo expressed particular concerns over Amazon’s warehousing practices and noted how Amazon accounted for disproportionate share of the U.S. warehousing industry’s workplace injuries. They stated that Amazon was failing to acknowledge their workplace injuries and failing to take corrective actions to address this problem, despite the findings of government investigations. They raised concerns that Amazon’s warehousing practices were driving the norms for the broader U.S. warehousing industry. 
  • Use of Robotics and Automation: Mr. Frumin further expressed concerns that Amazon’s adoption of robotics and automation technologies were contributing to workplace injuries and illnesses. He stated that this adoption of robotics technology had forced Amazon’s assembly line warehouse employees to work at a very fast pace with no flexibility in their jobs. Mr. Rath suggested that this uptick in injuries might be because this technology was relatively new and stated that warehousing companies would need to examine and refine these techniques over time. Subcommittee Republicans and Mr. Rath also contended that robotics and automation could improve workplace health and safety. Mr. Rath discussed how workplace injuries occur in the space where employees intersect with their tasks and noted how automation could help distance employees from dangerous tasks. He also stated that automation could shift responsibility for repetitive and load-bearing tasks away from workers and toward machines, which would reduce the risk of musculoskeletal disorders.
  • Use of Staffing Agencies within the Warehousing Industry: Subcommittee Democrats, Mr. Kaoosji, and Ms. Caicedo expressed concerns over how many companies throughout the U.S. either contracted or subcontracted with staffing agencies that placed temporary workers in warehouses. They stated that temporary workers were usually placed in more dangerous conditions than permanent workers and received insufficient or no training. They also expressed concerns that these workers were vulnerable to being overworked because they needed to meet their production quotas for their contracts to continue. They asserted that companies often used staffing agencies for their warehouses to escape direct liability for workplace injuries and illnesses and wage theft. They called for the adoption of robust joint-employer standards to ensure that companies were held responsible for the welfare of their warehouse workers. Mr. Kaoosji also asserted that employers should convert temporary workers to direct workers as soon as possible and provide these workers with safety training and education during their initial days on a new jobsite.
  • Aggressive Production Quotas: Subcommittee Demcorats, Mr. Kaoosji, and Mr. Frumin attributed the high rate of warehouse workplace injuries to the high production quotas imposed on warehouse workers. They asserted that these aggressive production quotas often led workers to rush, which made them become more accident prone. They expressed support for state laws that required companies to provide notices about their production quotas to their employees and states and to ensure that the production quotas did not conflict with a worker’s earned rest, meal breaks, or ability to use the restroom. 
  • Warehouse Heat Concerns: Subcommittee Democrats, Mr. Kaoosji, and Mr. Frumin raised concerns over how excessive heat in warehouses could endanger the health and safety of warehouse workers. Mr. Kaoosjii and Mr. Frumin noted how several states maintained heat protections and education requirements for warehouse workers and expressed support for these protections and requirements.
  • U.S. Occupational Safety and Health Administration (OSHA) Programs and Efforts to Support Warehouse Safety: Mr. Rath remarked that OSHA could play a “valuable” role in driving improvements in warehouse safety. He recommended that OSHA revitalize its consultation program and publish guidance documents to support workplace health and safety improvements. He highlighted how OSHA guidance documents could be issued much quicker than OSHA rules. He also suggested that OSHA form an alliance program with warehousing and distribution industry groups as it had with other industry groups to share successful interventions. He stated that many workplace safety adjustments could help to accommodate increases in production speeds while concurrently reducing workplace injuries and illnesses.
  • Buddy System Programs: Mr. Rath also remarked that buddy system programs were effective in addressing workplace health and safety issues. He explained that these programs partnered tenured employees with newer employees so that the tenured employees could share best health and safety practices with the newer employees. He further stated that buddy system programs helped companies to impart cultures that prioritized worker safety.
  • Impact of the COVID-19 Pandemic on Workplace Injury and Illness Statistics: Rep. Mariannette Miller-Meeks (R-IA) and Mr. Rath contended that workplace injury and illness rate data from 2020 and 2021 was potentially skewed and therefore less relevant when examining warehouse safety. They noted how OSHA had previously requested that positive COVID-19 cases be presumptively treated as work-related in the absence of any clear and convincing evidence that the case was not work-related. They stated that this OSHA policy had led to artificially higher workplace illness rates during the years 2020 and 2021.
• Additional Labor Policy Issues: Subcommittee Republicans and Mr. Rath also expressed interest in additional federal labor policies that might have an impact on worker health and safety.
  • Use of Wearable Technologies: Full Committee Ranking Member Foxx (R-NC) and Mr. Rath expressed concerns over a proposal from U.S. National Relations Labor Board (NLRB) General Counsel Jennifer Abruzzo to require employers to prove that their employee monitoring or management practices were narrowly tailored to address a legitimate business need. They asserted that this proposed policy change would chill the use of innovative wearable technologies that could be used to improve warehouse workplace safety. They contended that worker safety must be considered paramount in any federal labor policy discussions. Mr. Rath noted how wearable technologies could enable geofencing capabilities, which could be used to keep warehouse employees out of unsafe areas. He also stated that proximity sensors could manage the distance between warehouse workers and motor vehicles or power industrial vehicles. 
  • Post-Workplace Accident Drug Testing: Subcommittee Ranking Member Fred Keller (R-PA) and Mr. Rath also criticized OSHA proposals meant to discourage post-workplace accident drug testing. They contended that post-workplace accident drug testing was critical for ensuring the safety of warehouse workers.

Hearing Witnesses:

1. Mr. Sheheryar Kaoosji, Executive Director, Warehouse Worker Resource Center
2. Mr. Eric Frumin, Director of Health and Safety, Strategic Organizing Center
3. Mr. Manesh Rath, Partner, Keller & Heckman
4. Ms. Janeth Caicedo, Sister of Edilberto Caicedo

Member Opening Statements:

Subcommittee Chairman Alma Adams (D-NC):

• She discussed how the demand for warehouse work was “rapidly” increasing and noted how the number of warehouse jobs had increased by 90 percent between 2000 and 2017.
• She stated that the rise of Amazon and the COVID-19 pandemic had accelerated this growth.
  • She noted how the number of U.S. warehouse workers had grown by more than one-third since January 2020.
• She remarked that unscrupulous warehouse employers had made excessive demands of their workers and had prioritized productivity and speed over safety.
  • She asserted that warehouse workers now faced greater workplace dangers and highlighted several workplace safety incidents at Walmart and Rite Aid facilities.
• She further stated that warehouse workers throughout the U.S. lacked adequate protections from COVID-19, despite their essential roles during the pandemic.
• She noted how the U.S. warehouse and storage industry had experienced an injury rate that was nearly double the injury rate of all private industries in 2020.
  • She called the injury rate at Amazon warehouses especially alarming and referenced a Strategic Organizing Center 2021 report that found that Amazon warehouses had a serious injury rate for workers that was more than double the rate of non-Amazon warehouses.
• She also discussed how companies throughout the U.S. either contracted or subcontracted with staffing agencies that placed temporary workers in warehouses.
• She stated that these temporary workers were usually placed in more dangerous conditions than permanent workers and received insufficient or no safety training.
  • She further asserted that the host employers for these temporary workers treated the workers as expendable.
• She remarked that warehouse workers should not have to risk their lives to provide for themselves and their families.
• She stated that the Subcommittee and the U.S. Department of Labor (DoL) must continue its oversight of unsafe working conditions in warehouses.

Subcommittee Ranking Member Fred Keller (R-PA):

• He remarked that there were risks associated with warehouse work and expressed the Subcommittee’s commitment to upholding federal laws that mandate safe working conditions.
• He discussed how employment in the warehousing and storage sector had grown “rapidly” over the previous decade and highlighted how warehousing and delivery companies were expanding their business operations to meet customer demand for online merchandise.
  • He asserted that the efforts of warehouse workers during the COVID-19 pandemic were “invaluable.”
• He noted how the Occupational Safety and Health Act of 1970 provided all workers with the right to a safe and healthy workplace and remarked that most U.S. job creators were committed to providing a safe and healthy workplace for their workers.
• He stated that private sector businesses were embracing new technologies and best-in-class safety innovations to protect their workers from occupational hazards in warehouses.
  • He contended that the federal government should be supportive of these efforts.
• He asserted that Subcommittee Democrats were refusing to recognize the efforts of companies to improve health and safety conditions for their warehouse workers.
  • He called these attacks on the warehouse industry dangerous and grossly unfair.
• He argued that having OSHA vigorously target businesses would not make warehouses safer and would instead harm the U.S. economy and workforce.
  • He further contended that increased OSHA enforcement would be especially harmful to businesses as the U.S. appeared to be entering a recessionary environment.
• He asserted that the best ways to increase warehouse safety were through increased compliance assistance, employer partnership programs, and education.
• He remarked that Subcommittee Democrats were using the issue of warehouse safety to pursue a larger goal of increasing the number of workers in labor unions.

Witness Opening Statements:

Mr. Sheheryar Kaoosji (Warehouse Worker Resource Center):

• He noted how 1.7 million people nationwide (including 300,000 people in southern California) work in warehouses and stated that the U.S. warehouse sector had grown “rapidly” over the previous decade.
  • He attributed much of this sector’s growth to the growth of Amazon as an employer.
• He discussed how a “significant” number of warehouse workers were employed through staffing agencies at low wages and commented that this use of staffing agencies had led to many issues.
• He stated that warehouse workers that were employed through staffing agencies tended to be more desperate for work and indicated that these workers were disproportionately people of color, immigrants, and women.
  • He referenced recent National Employment Law Project research that found that wage theft, workplace injuries, and retaliation were “endemic” in temporary jobs, including warehouse jobs.
• He highlighted how California maintained robust joint-employer standards and called these standards “critical” for holding employers accountable to the law.
• He noted how the NLRB is currently reviewing federal joint-employer standards and mentioned how the DoL had reinstated joint-employer standards in 2021.
  • He asserted that these rules create strong disincentives for employers to make excessive use of subcontracting and staffing agencies.
  • He also asserted that these rules push accountability closer toward business decision makers and owners.
• He then discussed how Amazon had been a “key” influence on the U.S. warehouse sector and recounted how Amazon had opened its first California warehouse in San Bernardino in 2011.
• He stated that while Amazon had hired large numbers of people in its San Bernardino warehouse, he indicated that this warehouse had experienced high worker turnover.
  • He attributed this high turnover to dangerous conditions, insecure hours, and a high pace of work.
• He discussed how Amazon facilities and other warehouses pushed their workers to move as fast as possible so that the companies could offer fast delivery options to their customers.
  • He noted how Amazon sought to move products rapidly through their warehouses (rather than store the products) and commented that other companies are now copying Amazon’s warehouse practices.
  • He commented that the fast pace of Amazon’s warehouses led workers to experience avoidable injuries.
• He mentioned how California had enacted a law that restricts a warehouse employer’s ability to discipline workers for not keeping up with quotas and requires the employer to provide basic information about the quotas to their workers and the state.
  • He commented that this California policy was beneficial to workers throughout the U.S.
• He also discussed how heat was a problem for many warehouse workers throughout the U.S. and stated that the combination of heat and high production quotas made warehouse work especially dangerous.
• He mentioned how California had enacted a law establishing indoor heat protections for workers through providing workers with extra breaks, water, and training.
  • He commented that these types of policy protections could save lives and make warehouses more productive through keeping workers healthy.
• He noted how Amazon was now the U.S.’s largest warehousing company and highlighted how Amazon warehouses had high employee turnover and high paces of work.
  • He commented that Amazon’s warehousing practices were influencing industry-wide warehousing practices.
• He called Amazon’s warehousing practices “unacceptable” and stated that the DoL should work to improve this sector’s accountability.

Mr. Eric Frumin (Strategic Organizing Center):

• He remarked that the U.S. must focus on the “enormous toll” of serious injuries and disabilities that threaten hundreds of thousands of Amazon workers every single day.
  • He asserted that this threat had reached crisis proportions and noted that Amazon had caused more serious injuries to warehouse workers last year than all of the rest of the U.S.’s warehouses combined.
• He stated that Amazon had allowed the serious injury rate at its warehouses to jump by 20 percent in 2021 and noted how the typical Amazon warehouse worker with a serious injury was away from their regular job for almost nine weeks.
  • He asserted that these “horrendous” results were a predictable outcome of Amazon’s business model, which he described as prioritizing speed, production, and profit over worker safety.
• He remarked that Amazon was optimizing its production system to put the bodies of its warehouse workers under “extreme” levels of stress while constantly reminding their warehouse workers that they will be fired if they fail to keep up with the “inhumane” pace of work.
• He stated that Amazon knew how to reduce warehouse worker injuries and mentioned how Amazon had temporarily eased its work speed pressures during the COVID-19 pandemic by suspending disciplinary actions based on production metrics.
  • He commented that this action had led Amazon’s warehouse injury rate to drop “significantly.”
• He noted however that Amazon had subsequently reinstated its work rate requirements in October 2020 so that it could promptly fulfill Prime Day orders, which had caused their warehouse injury rate to increase in 2021.
• He contended that Amazon’s work rate requirements were harmful to workers and violated federal law.
  • He mentioned how Washington state OSHA inspectors had recently found a direct connection between Amazon’s employee monitoring and discipline system and workplace injuries.
  • He also mentioned how Washington state OSHA inspectors had also found that Amazon’s very high pace of work constitutes a “willful” violation of worker safety laws.
• He lamented how Amazon’s warehousing practices were becoming the norm for the broader U.S. warehousing industry.
  • He asserted that Amazon’s warehousing business model must be stopped before it harmed more workers.
• He stated that Amazon executives have sought to deny that their warehouses were experiencing an injury “crisis” and have attempted to blame others for these warehouse injuries (including their own workers).
  • He alleged that Amazon executives had “severely” misrepresented their own warehouse injury records to investors, journalists, and the public and had falsely claimed that their warehouse injury rates were average for the relevant industries.
• He mentioned how his organization, the Strategic Organizing Center, had called on the U.S. Securities and Exchange Commission (SEC) to investigate Amazon’s public statements about its warehouse injury rates.
• He discussed how state OSHA agencies throughout the U.S. were launching investigations into Amazon’s warehousing practices and characterized Amazon’s responses to these investigations as involving denials and deflections.
  • He asserted that Amazon was failing to fix the labor safety law violations found during these investigations.
• He called on Amazon to stop opposing OSHA’s interventions into their warehouse safety practices and comply with OSHA’s orders to fix warehouse safety hazards.
  • He stated that Amazon could immediately issue a directive to stop firing warehouse employees for taking breaks due to exhaustion.
• He also recommended that the Subcommittee encourage U.S. Secretary of Labor Marty Walsh to continue the Biden administration’s full support for interventions to improve safety conditions in the warehouse industry.
  • He commented that this would entail alerting warehouse industry executives about the dangers of Amazon’s business model and demanding that Amazon fulfill its legal mandate to protect workers.

Mr. Manesh Rath (Keller & Heckman):

• He discussed how warehousing and distribution was a complex operation that often involves 24/7 work to receive, sort, store, pick, and move out products.
• He stated that his client employers have worked to understand the incidences of injuries and illnesses in their workplaces, identify potential hazards, and develop interventions to improve workplace safety and health.
  • He testified that these employers have successfully driven workplace injury and illness rates down through careful examination of their operations and forceful and creative interventions.
• He noted how the U.S. Bureau of Labor Statistics (BLS) had reported that warehousing had a rate of 5.0 non-fatal occupational injuries per 1,000 full-time employees (FTEs) in 2017.
  • He indicated that this rate had previously been 9.5 non-fatal occupational injuries per 100 FTEs in 2003.
• He remarked however that there remained work to be done to further drive down warehousing injuries and illnesses.
• He stated that warehouse and distribution employers have achieved improvements in workplace safety through various measures.
  • He indicated that these measures include acclimatization programs to address musculoskeletal disorders, increased and improved education programs, the establishment of buddy systems that partnered more experienced workers with less experienced workers, intensive adaptations to the physical work plans and equipment that improve the ergonomic interface between workers and their tasks, and the introduction of robotics and other forms of automation.
• He then asserted that the relationship between work speed and injuries was not an unavoidable or inescapable causal relationship.
  • He commented that increases in production speed did not need to come at the expense of safety.
• He stated that additional safety adjustments could help to accommodate increases in production speeds.
  • He further stated that machine guarding, personal protective equipment, and forms of automation could actually allow for increased production speed while concurrently reducing workplace injuries and illnesses.
• He then remarked that OSHA could play a “valuable” role in driving improvements in warehouse safety and recommended that OSHA revitalize its consultation program and publish guidance documents to support workplace health and safety improvements.
  • He highlighted how OSHA guidance documents could be issued much quicker than OSHA rules.
• He further suggested that OSHA form an alliance program with warehousing and distribution industry groups as it had with other industry groups to share successful interventions.

Ms. Janeth Caicedo (Sister of Edilberto Caicedo):

• She remarked that low-paid warehouse and logistics workers were expected to do physically demanding jobs and risk their health and safety.
  • She called on the U.S. to change what was expected from these workers.
• She mentioned how three New Jersey Amazon warehouse workers had died within three weeks of each other during the previous summer and highlighted how these three deaths had occurred near Amazon Prime Day.
• She discussed how her brother was a temporary warehouse worker employed through an unlicensed staffing agency.
  • She commented that warehouse workers that were employed through staffing agencies were more likely to risk serious injuries relative to direct hire warehouse workers.
• She recounted how her brother had suffered a dangerous brain injury resulting from a workplace injury and remarked that her brother’s death had devastated her family.
• She blamed her brother’s warehouse employer for her brother’s death and stated that the warehouse employer had not been in compliance with OSHA regulations.
  • She also stated that the warehouse employer’s equipment was unsafe and that the warehouse employer did not provide adequate training for their employees.
• She remarked that temporary warehouse workers (including her brother) are unable to speak on the safety risks associated with their working conditions if they expect to keep their jobs.
  • She indicated that workers were often faced retaliation from their staffing agencies or warehouse employers when they spoke up about substandard working conditions.
• She stated that the U.S. warehousing and logistics industry was rife with safety risks and asserted that these problems were especially pronounced among staffing agency-employed workers.
  • She commented that staffing agencies were designed to shield companies from responsibility for the working conditions of the workers that they employ.
• She mentioned how a 2015 study had found that nearly half of all New Jersey warehouse workers were considered temporary workers and that most these temporary workers were stationed at the same assignment for more than two years.
• She noted how temporary workers generally did not qualify for health benefits, were often victims of wage theft, and subject to predatory fees.
  • She further noted how wage workers often received threats when they attempted to take legally allowed time off.

Congressional Question Period:

Subcommittee Chairman Alma Adams (D-NC):

• Chairman Adams mentioned how the Strategic Organizing Center’s report had found that the pace of work could contribute to warehouse workplace safety concerns. She asked Mr. Frumin to address how businesses could create a healthy balance between fulfilling work orders for customers and ensuring that the pace of work did not endanger their warehouse employees.
  • Mr. Frumin acknowledged that while the pace of work did not inherently make a job dangerous, he asserted that the failure of employers to monitor their pace of work could lead their workers to become overwhelmed. He stated that employers should listen to their workers to determine whether their pace of work was appropriate. He mentioned how Amazon workers have long complained about their pace of work to the public, their managers, and OSHA. He commented that these complaints had thus far been unsuccessful in terms of bringing about reductions in their pace of work. He also stated that the adoption of ergonomics practices could make workplaces safer for employees.
• Chairman Adams then asked Ms. Caicedo to discuss her brother’s character and to provide recommendations so that the Subcommittee could properly honor his memory.
  • Ms. Caicedo described her brother as generous and stated that the Subcommittee could honor him by working to “give life to others.”
• Chairman Adams then mentioned how there were disturbing reports about excessive heat in warehouses. She asked Mr. Frumin and Mr. Kaoosji to provide recommendations for ensuring that warehouses maintained proper temperature controls. 
  • Mr. Frumin remarked that warehouses should take accurate and real-time temperature measurements and ensure that their workers were made aware of these measurements. He also stated that warehouses should educate their workers about what constitutes a dangerous warehouse temperature and the warning signs of heat-related illnesses. He further stated that warehouses must educate their warehouse managers on how to respond to unsafe temperatures and heat-related illnesses. He called it important for workers to have actionable rights so that they can remove themselves from unsafe conditions. He lamented how some companies were repeatedly ignoring their legal requirements to protect their workers from dangerous heat exposures.
  • Mr. Kaoosji mentioned how California had maintained an outdoor heat standard since 2006 that applied to many dock and warehouse workers. He stated that this policy had proven successful when the employer provides their workers extra breaks and rest when temperatures exceed a set number. He called for a similar heat standard to be established for indoor workers.

Full Committee Ranking Member Virginia Foxx (R-NC):

• Ranking Member Foxx stated that while the hearing’s topic was supposedly occupational safety in warehouses, she asserted that Subcommittee Democrats were actually interested in policies that would unionize all workers, regardless of the preferences of the workers. She remarked that nothing in the written testimonies from the witnesses indicates that unionized warehouses were safer than non-unionized warehouses. She then asked Mr. Rath to provide recommendations for ensuring worker safety in warehouses.
  • Mr. Rath remarked that employers first needed to understand where injuries and illnesses were occurring and then try to intervene with the appropriate remedial devices. He indicated that these remedial devices could include changes to equipment, automation, and the mechanization of tasks that were more likely to cause injuries. He further stated that employers should test and evaluate these interventions to identify which ones were successful and which ones could be refined.
• Ranking Member Foxx then mentioned how NLRB General Counsel Jennifer Abruzzo had recently issued a memorandum that urged the NLRB to adopt a new framework requiring employers to prove that their employee monitoring or management practices were narrowly tailored to address a legitimate business need. She noted that the memorandum also argued that employers should need to demonstrate that their monitoring and management practices outweighed the rights of employees to organize under the National Labor Relations Act of 1935. She asked Mr. Rath to address how this proposed policy would chill the use of innovative wearable technologies that could be used to improve workplace safety.
  • Mr. Rath remarked that employers should emphasize that worker safety and health constitutes a legitimate business need. He asserted that the ability of employers to pursue improvements in worker safety and health should be unfettered by rights under the National Labor Relations Act. He stated that wearable technologies could enable geofencing capabilities, which could be used to keep employees out of unsafe areas. He also stated that proximity sensors could manage the distance between workers and motor vehicles or power industrial vehicles. He remarked that the aforementioned applications of wearable technologies did not infringe upon a worker’s privacy. He contended that privacy should not be considered in matters where a worker’s safety and health were involved.
• Ranking Member Foxx then remarked that the private sector has been “rapidly” innovating to improve workplace safety in warehouses. She asked Mr. Rath to provide recommendations for how the U.S. government could encourage these efforts to improve workplace safety in warehouses. She also asked Mr. Rath to identify current or proposed actions that could impede these private sector innovations.
  • Mr. Rath remarked that federal government involvement in workplace safety issues necessitates that employers implement all improvements in workplace safety and health. He stated that the federal government should therefore collaborate with employers on workplace safety issues. He highlighted how OSHA had previously issued guidance documents during the COVID-19 pandemic to support workplace safety improvements. He also stated that OSHA maintained alliance programs with industry groups to identify best practices for worker safety. He further asserted that OSHA’s consultation program had been underutilized and could be revitalized for the purpose of improving safety and health in warehouses and distribution centers.
• Ranking Member Foxx remarked that she was unaware of any employers that would intentionally endanger their workers. She asserted that the U.S. should promote collaborative approaches to improve worker safety rather than focus on increasing unionization rates.

Rep. Mark Takano (D-CA):

• Rep. Takano displayed a chart from Warehouse Workers for Justice that showed the employment structure for a Walmart distribution center in Elwood, Illinois. He explained how the chart shows a network of relationships between Walmart, third party logistics companies, and various staffing agencies that subcontracted with the facility. He asked Mr. Kaoosji to indicate whether the employment structure for Walmart’s Elwood distribution center was common for the warehousing and distribution industry.
  • Mr. Kaoosji answered affirmatively and noted how Walmart maintained a similar employment structure for their Riverside, California distribution center. He stated that many large retailers (including Walmart) were subcontracting workers in their warehouses for multiple reasons. He noted how larger retailers will subcontract workers in their warehouses to reduce their own direct liability around health, safety, and wage theft issues. He also stated that larger retailers will subcontract workers in their warehouses so that they could quickly scale up and scale down their workforces.
• Rep. Takano remarked that the significance of the employment structure for the Walmart distribution center in Elwood was that the subcontracting staffing agencies insulated Walmart from liability. He elaborated that Walmart would largely not be responsible for wage theft occurring at the subcontractor level under this structure.
  • Mr. Kaoosji stated that Walmart’s liability for wage theft occurring at the subcontractor level would vary across distribution center locations. He mentioned how California had established robust joint-employer laws surrounding wage theft and worker health and safety, which made it easier for a retailer to be held liable for the actions of their subcontractors. He expressed support for the Biden administration’s approach to joint-employer issues and indicated that this approach would also make it easier for a large retailer to be held liable for the actions of their subcontractors.
• Rep. Takano remarked that strong joint-employer regulations were important so that larger companies would not be able to escape liability for the health and safety problems and wage theft of their subcontractors. He then mentioned how several states (including California, New York, and Minnesota) have either enacted or advanced legislation that would require employers in the warehouse industry to provide advanced and detailed notices of new productivity or output requirements to their workers. He also mentioned how many states had laws that prevent management teams from enforcing production quotas that would conflict with a worker’s earned rest, meal breaks, or ability to use the restroom. He asked Mr. Mr. Kaoosji to explain why the aforementioned laws were needed to protect warehouse workers.
  • Mr. Kaoosji noted how non-unionized employees needed to constantly demonstrate their value to their companies to remain employed. He stated that this need could drive employees to work through breaks and forgo meals to demonstrate their productivity to their company. He remarked that state laws that protect warehouse workers were thus important to ensure that employees were not being overworked.

Subcommittee Ranking Member Fred Keller (R-PA):

• Ranking Member Keller remarked that U.S. employers were very committed to keeping their workers safe. He asked Mr. Rath to address whether employers in the warehousing industry care about the health and safety of their workers.
  • Mr. Rath testified that every single employer that he had worked with as an attorney had been fully dedicated to improving workplace safety. He also testified that these employers had experienced actual improvements in workplace safety because of their own innovations, devices, and investments. He further stated that these employers had consistently gone “above and beyond” the safety requirements prescribed under the Occupational Safety and Health Act of 1970.
• Ranking Member Keller asked Mr. Rath to indicate whether warehousing companies recorded their safety incident rates.
  • Mr. Rath noted how companies were required to record all work-related injuries and illnesses under the Occupational Safety and Health Act of 1970’s recordkeeping rule.
• Ranking Member Keller asked Mr. Rath to indicate the safety and illness incident rates of his employer clients.
  • Mr. Rath stated that he generally did not have access to the safety and illness incident rates of his employer clients unless the information was relevant to a particular legal matter.
• Ranking Member Keller reiterated his assertion that U.S. employers were very committed to keeping their workers safe based on his experience. He then discussed how the federal government operates the U.S. Postal Service (USPS), which provides warehousing and distribution for many goods. He remarked that any sincere efforts to address warehouse safety would involve examining the entire warehousing industry (which would include the USPS).
  • Mr. Rath expressed agreement with Ranking Member Keller’s remark.
• Ranking Member Keller then discussed how OSHA under the Obama administration had worked to discourage post-workplace accident drug testing through amending its injury and illness reporting rule. He noted how OSHA under the Trump administration had subsequently issued a memorandum clarifying that the Agency’s regulations do not prohibit post-workplace accident drug testing. He asked Mr. Rath to indicate whether drug testing constitutes a “critical tool” for keeping warehouses safe.
  • Mr. Rath noted how the insurance industry receives all workers’ compensation claims. He stated that the insurance industry “unequivocally” supports the use of drug and alcohol testing in the workplace as a mechanism for driving down workplace injuries and illnesses. He called it “unfortunate” for OSHA to have opposed the use of drug and alcohol testing in the workplace.
• Ranking Member Keller stated that the federal government recognized the safety benefits of drug testing based on its requirements for the commercial driver’s license (CDL) program.

Rep. Donald Norcross (D-NJ):

• Rep. Norcross recounted how he had observed three workplace deaths during his previous career as an electrician and described these experiences as very disturbing. He then mentioned how three Amazon warehouse employees in his state of New Jersey had recently died at work within a three-week span. He asserted that workplace safety must be paramount and commented that workplace deaths often occur when workplace safety was not prioritized. He noted that OSHA encouraged voluntary efforts to implement workplace safety measures and asserted that the U.S. needed to further address the issue of workplace safety. He then highlighted how a recent Strategic Organizing Center report had found that Amazon warehouse workers accounted for 50 percent of warehouse workplace injuries, despite only comprising 33 percent of the U.S.’s warehouse workers. He emphasized that Amazon was reporting these warehouse workplace injuries pursuant to OSHA standards. He also noted how the Strategic Organizing Center report had concluded that the serious injury rate at Amazon warehouses was 88 percent higher than the serious injury rates at non-Amazon warehouses. He asked Mr. Frumin to address why Amazon warehouses had higher injury rates relative to non-Amazon warehouses.
  • Mr. Frumin noted how Amazon employed algorithms and computerized modeling to set production quotas for their warehouse workers and asserted that these quotas were often too aggressive. He also stated that Amazon’s use of robotics was contributing to the high injury rates at its warehouses. He indicated that the injury rates at Amazon’s robotic facilities were “much higher” than the injury rates at Amazon’s regular warehouses.

Rep. Mariannette Miller-Meeks (R-IA):

• Rep. Miller-Meeks first provided Mr. Rath with an opportunity to comment on the injury rates at Amazon warehouses.
  • Mr. Rath first indicated that his testimony was not on behalf of Amazon or any other employer. He then remarked that any employer that had experienced an above average injury or illness rate within their sector has an opportunity to explore the reasons for these higher rates, develop interventions to address these rates, and test and refine these interventions. He stated that a company that was introducing new facilities and automation techniques might experience an uptick in workplace injuries and illnesses. He asserted that such a company would need to examine and refine their new facilities and automation techniques to reduce their injury and illness rates.
• Rep. Miller-Meeks noted that while the U.S. warehousing and storage sector had rapidly grown over the previous decade, she indicated that the total number of fatal injuries in warehouses had remained “relatively the same” over time. She asked Mr. Rath to address whether this data indicates that the warehousing and distribution sector’s fatality rate has been decreasing over time.
  • Mr. Rath noted how the warehousing sector’s workforce population had doubled over the previous decade and how warehouse worker fatalities had remained very low. He acknowledged that while the total number of warehouse worker fatalities had increased during this period, he stated that the percentage of warehouse workers that have experienced workplace fatalities has declined over this period due to the overall population growth of the warehouse workforce.
• Rep. Miller-Meeks also asked Mr. Rath to explain how the workplace injury and illness rate data from 2020 and 2021 were potentially skewed and therefore less relevant when examining warehouse safety.
  • Mr. Rath remarked that the COVID-19 pandemic had a disruptive effect on the management of injury and illness rates and fatalities. He noted how OSHA had specifically asked that positive COVID-19 cases be presumptively treated as work-related in the absence of any clear and convincing evidence that the case was not work-related. He stated that this OSHA policy had led to artificially higher workplace illness rates during the years 2020 and 2021.
• Rep. Miller-Meeks stated that most COVID-19 cases had been acquired in non-workplace settings and questioned the accuracy of the official workplace injury and illness rates for 2020 and 2021. She then recounted how Congress had used the Congressional Review Act in 2001 to repeal OSHA’s ergonomics standard. She asked Mr. Rath to explain why OSHA’s ergonomics standard had received strong opposition from both Congress and stakeholders.
  • Mr. Rath remarked that OSHA’s ergonomics standard would have required a company to adopt “vast and expensive” engineering controls for their work facilities in response to any single incident of a musculoskeletal disorder. He stated that this standard would have required a company to rechannel their resources to addressing ergonomics issues, even if those resources could be better spent addressing other workplace hazards. He noted how OSHA was expected to address significant health concerns and asserted that the incidence of a single musculoskeletal disorder did not meet this standard.

Rep. Pramila Jayapal (D-WA):

• Rep. Jayapal noted how Amazon’s corporate headquarters was located within her Congressional District and indicated that many of her constituents work for Amazon. She remarked that large companies (like Amazon) have a responsibility to protect their workers. She applauded Amazon workers for their efforts to address climate change and warehouse worker safety and commented that many Amazon workers had put their jobs at risk when they took these actions. She then mentioned how the Washington Department of Labor and Industries had begun an investigation into two Amazon warehouses located in Washington in 2020. She asked Mr. Frumin to discuss what this investigation had found regarding the two Amazon warehouses.
  • Mr. Frumin recounted how the Washington Department of Labor and Industries had launched an investigation into Amazon’s DuPont, Washington warehouse in 2020 and noted how this warehouse had experienced the highest injury rate for any Amazon warehouse in the U.S. He stated that the Washington Department of Labor and Industries had discovered some “very serious” workplace safety violations at this DuPont warehouse. He remarked that Amazon had failed to address these discovered workplace safety violations at their DuPont warehouse. He noted how the Washington Department of Labor and Industries had subsequently investigated an Amazon warehouse in Kent, Washington and had discovered similar workplace safety problems at the warehouse. He stated that the Washington Department of Labor and Industries had deemed the workplace safety problems at the Kent warehouse willful as a result of Amazon’s total denial of these problems. He asserted that Amazon had demonstrated a pattern of failing to acknowledge their workplace safety problems.
• Rep. Jayapal noted how Amazon possessed a health and safety workforce of 8,000 people worldwide according to the company’s website. She asked Mr. Frumin to indicate when Amazon had deployed this health and safety workforce to address its health and safety issues at its DuPont warehouse.
  • Mr. Frumin stated that personnel from Amazon’s corporate ergonomics team had only visited the DuPont warehouse after the Washington Department of Labor and Industries had already launched its investigation into the warehouse. He called this situation “very unfortunate.”
• Rep. Jayapal lamented how Amazon was suing the Washington Department of Labor and Industries over the Department’s findings. She expressed hope that Amazon’s corporate leadership would work to address the health and safety issues at their warehouses.

Rep. Burgess Owens (R-UT):

• Rep. Owens remarked that workforce concerns were present both within his Congressional District and throughout the broader U.S. He stated that all industries (and particularly the warehousing industry) were looking to retain workers and questioned the veracity of the claims that employers were becoming less interested in worker health and safety. He also asserted that increased the unionization of workers would not result in increases in worker health and safety. He then discussed how some warehouses had implemented buddy system programs to address workplace safety issues. He asked Mr. Rath to discuss these programs and to address whether these programs were effective.
  • Mr. Rath remarked that buddy system programs were effective in addressing workplace health and safety issues. He explained that these programs partnered tenured employees with newer employees so that the tenured employees could share best health and safety practices with the newer employees. He also noted how the tenured employees often corrected their new employee partners when they engaged in unsafe activities. He further remarked that buddy system programs helped companies to impart cultures that prioritized worker safety. He stated that a worker’s susceptibility to workplace injuries and illnesses was often dependent on the actions of their coworkers and commented that buddy system programs could bolster company-wide adoption of health and safety practices.
• Rep. Owens then asked Mr. Rath to discussed whether the use of robotics and other forms of automation in warehouses had been effective in supporting the performance of high-risk tasks.
  • Mr. Rath noted that while robotics and other forms of automation were very expensive, he stated that employers embrace these tools as a means of achieving improved workplace safety and health. He discussed how workplace injuries occur in the space where employees intersect with their tasks and noted how automation could help distance employees from dangerous tasks. He also noted how musculoskeletal disorders account for the largest share of warehouse and distribution workplace injuries outside of motor vehicle accidents. He stated that automation could reduce the musculoskeletal load on workers and transfer that load to machines.

Full Committee Chairman Bobby Scott (D-VA):

• Chairman Scott noted how temporary warehouse workers were more likely to experience workplace injuries than non-temporary warehouse workers. He asked Mr. Kaoosji to identify actions that could be taken to reduce the injury rates for temporary warehouse workers.
  • Mr. Kaoosji remarked that the warehousing industry was exploiting temporary workers and asserted that employers should convert temporary workers to direct workers as soon as possible. He also called it important for warehouse workers to receive safety training and education during their initial days on a new jobsite. He stated that this training and education was especially important for workers that needed to meet production quotas to obtain permanent employment or extensions of their employment contracts. He further called for reductions in production quotas at warehouses to decrease the incentive for workers to move fast (which could increase their propensity for workplace accidents). He lastly remarked that warehouses should provide assurances to their temporary workers that the workers will have ample opportunities to obtain full-time employment and/or extensions of their contracts.
• Chairman Scott then asked Mr. Frumin to discuss how the use of robotics technology at warehouses impacts warehouse worker injury rates.
  • Mr. Frumin noted how Amazon was the world’s largest user of warehouse robotics technology. He stated that Amazon’s adoption of robotics technology had forced its assembly line warehouse employees to work at a very fast pace with no flexibility in their jobs.
• Chairman Scott then mentioned how several states have passed laws to reduce warehouse workplace injuries. He asked Mr. Kaoosji and Mr. Frumin to address whether there existed any studies on the effectiveness of these laws in reducing warehouse workplace injuries.
  • Mr. Frumin indicated that he was unaware of any studies that assessed the impact of New York’s warehouse workplace safety law.
  • Mr. Kaoosji noted how California’s warehouse workplace safety law was passed in 2021 and was just beginning to be implemented. He stated that he thus did not have any data on the effectiveness of California’s warehouse workplace safety law.
• Chairman Scott then asked Mr. Rath to identify who would be liable for an OSHA violation in a warehouse that used subcontractor staffing agencies.
  • Mr. Rath noted how there was a concept known as the multi-employer worksite doctrine in the field of occupational safety and health law. He stated that a wide range of employers could be responsible for an OSHA violation in a warehouse that used subcontractor staffing agencies. He elaborated that the liable employer could be the employer that has control over the warehouse premises or operations, the employer that directly engages workers, or the employer that might be associated and co-located on the same premises and performing other tasks.
• Chairman Scott asked Mr. Rath to indicate whether it was possible for the employer to not be liable for an OSHA violation in a warehouse.
  • Mr. Rath stated that an employer was not necessarily responsible for an injury or illness at a warehouse worksite when such an injury or illness occurs.

Rep. Michelle Steel (R-CA):

• Rep. Steel remarked that employers have a natural incentive to keep their employees healthy and safe, especially considering the current labor shortage. She mentioned how her state of California was experiencing port backlogs, trucker shortages, and record numbers of smash and grabs. She criticized California Democrats for imposing additional burdensome regulations on the state’s business. She noted how California had recently enacted a law that would create a new quota system to ensure that existing workplace health and safety standards were being met. She asked Mr. Rath to indicate whether this California law would lead to manufacturing shortages and higher distribution costs. She also asked Mr. Rath to indicate whether this California law would provide employees with essential protections.
  • Mr. Rath commented that Rep. Steel’s question appeared to be more economic than legal in nature and stated that he was merely a lawyer. He noted however that the rate of reduction of workplace fatalities was greater prior to the enactment of the Occupational Health and Safety Act of 1970 and indicated that this reduction had continued following the law’s enactment. He stated that this trend suggested that employers (and not federal regulations) have been primarily responsible for improvements in workplace safety and health.
• Rep. Steel then discussed how labor unions were often opposed to the use of robotics and automation in workplace settings. She asserted that technology makes workplaces safer and equips workers with technology skills that will benefit their future employment opportunities. She asked Mr. Rath to discuss how employers were adopting robotics and automation technologies and to address whether these technologies have led to improved worker safety.
  • Mr. Rath stated that musculoskeletal disorders were the largest cause for injuries and illnesses in warehouses and distribution centers. He stated that automation could shift responsibility for repetitive and load-bearing tasks from workers to machines. He commented that this shift in responsibility would reduce injury and illness rates at warehouses and distribution centers.

Rep. Ilhan Omar (D-MN):

• Rep. Omar remarked that Amazon’s warehouse workers and drivers faced regular economic insecurity. She stated that Amazon had attempted to layoff dozens of employees at an Eagan, Minnesota warehouse because the employees could not switch from day shifts to night shifts. She noted how these Amazon workers often came from low-income or immigrant households. She expressed her support for these Amazon workers in their conflict with Amazon management. She then discussed how Amazon’s profits had tripled between 2019 and 2021 and highlighted how Amazon founder Jeff Bezos had experienced significant growth in his net worth during 2020. She noted that the serious injury rate at Amazon warehouses had been more than double the rate of non-Amazon warehouses during this period. She noted how OSHA had found 792 work-related injuries at Amazon warehouses in Minnesota between 2018 and 2020. She indicated that these findings mean that one out of nine Amazon warehouse workers were injured on the job annually in Minnesota. She called this situation “utterly shameful and unacceptable.” She asked Mr. Frumin to address why Amazon was refusing to make its workplaces safer.
  • Mr. Frumin stated that Amazon has denied that it has a workplace safety problem. He then remarked that Amazon’s business model depended on their employees working at very fast paces so that the company could offer fast delivery options. He called on the DoL to investigate Amazon’s labor practices. He also asserted that Amazon was not making use of robotics to improve workplace safety.
• Rep. Omar contended that Amazon was prioritizing profits over its workers. She then stated that extreme weather events were putting workers in harm’s way. She asked Mr. Frumin to address how Amazon and other corporations could better weatherize their warehouses and improve workplace policies to prevent worker harm from climate change-related dangers.
  • Mr. Frumin remarked that Amazon had a history of failing to take all possible measures to protect its warehouse workers from heat. He stated that Amazon should empower its warehouse workers to speak up when they were feeling sick and obtain adequate medical care from trained professionals when necessary. He stated that medical care at Amazon warehouses often involved low-level emergency medical technicians that operated with no medical supervision. He commented that this situation resulted in workers receiving improper medical treatment.
  • Mr. Kaoosji mentioned how warehouse workers at the Amazon’s San Bernardino facility had only received extra breaks, water, and rest after they had spoken up and taken collective action during a September 2022 heat wave.

Subcommittee Chairman Alma Adams (D-NC):

• Chairman Adams remarked that warehouse work could be dangerous and stated that there existed economic pressures for companies to make warehouse work even more dangerous. She discussed how the Subcommittee had worked throughout the 117th Congress to improve workplace safety and highlighted how the Subcommittee had advanced three workplace safety bills through the U.S. House of Representatives during this period. She also mentioned how the Subcommittee had pushed the Biden administration to adopt an enforceable emergency workplace safety standard to protect workers from COVID-19.