Amazon Says Workers Aim To 'Exploit' Pandemic For Reforms

By Jon Steingart
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Law360 (July 8, 2020, 7:29 PM EDT) -- Amazon says workers at its Staten Island warehouse are just looking "to exploit the pandemic" to get workplace reforms, the latest chapter in a lawsuit that has seen the workers draw support from Democratic legislators and an Obama-era labor official.

The internet giant on Tuesday asked a New York federal judge to deny the workers' motion for an injunction ordering the reforms in a lawsuit claiming the company has violated New York state workplace safety law and created a public nuisance that puts the workers in harm's way. Amazon argued that the case shouldn't even be in court because the Occupational Safety and Health Administration has primary jurisdiction.

The workers simply are pursuing longstanding gripes with Amazon's workplace policies and are using the pandemic to ask the court to order those reforms, according to the company's brief.

"Months after the public health emergency arose, plaintiffs (joined by French and U.S. labor unions) ask this court for a preliminary injunction, not to impose new safety measures, but instead to order Amazon to modify its HR policies (such as to excuse tardiness to work caused by 'public transportation-related delays') in ways that well exceed any legal requirements," Amazon said. "Indeed, confirming that no good deed goes unpunished, plaintiffs complain that Amazon no longer provides unlimited unpaid time off, which Amazon voluntarily instituted during the peak of the crisis."

Amazon listed "cutting-edge measures" it has taken to protect workers at the JFK8 warehouse, including disinfectant spraying, temperature checks, reconfiguration to improve social distancing, a mandatory face mask policy, providing hand sanitizer, and contact tracing.

The company argues that the workers' state law claims can't go anywhere because they are preempted by the federal Occupational Safety and Health Act, which in turn requires them to complain to OSHA instead of turning to court.

Similarly, the public nuisance claim can't stand because nuisance law is meant for major concerns that affect an entire community, not a group of workers on a company's private property, Amazon said. Moreover, they can't show they are at greater risk of catching COVID-19 from working in the Staten Island distribution center because a pandemic, by its very nature, is widespread, it added.

The safety steps Amazon lists aren't actually being carried out, Frank Kearl, an attorney representing the workers, told Law360 by email. "Amazon's presented a pretty nice picture of the workplace safety and health policies at their JFK8 facility. Unfortunately, Amazon doesn't seem to actually be implementing those policies," he said.

"Workers at the JFK8 facility continue to feel extraordinary pressures to come to work, even when they may be sick, and to work at a breakneck pace, even when that means not going to the bathroom to engage in basic hygiene," he said. "All of this has gotten worse over the past several weeks, when Amazon has sought to increase its output to maintain pre-pandemic profits," he said, adding that following public health guidance is essential to children returning to school in the fall.

Rep. Max Rose, D-N.Y., who represents Staten Island, filed an amicus brief in support of the workers, joined by roughly a dozen other Democratic members of Congress — several of whom who represent New York-area districts — and one independent who caucuses with Democrats, as well as the Open Society Foundations' policy arm. Richard Griffin Jr., an attorney at Bredhoff & Kaiser PLLC who was appointed top prosecutor at the National Labor Relations Board by President Barack Obama, co-wrote the brief. Several unions filed briefs supporting the workers too, while no one has filed an amicus brief supporting Amazon.

The workers are asking for an injunction directing Amazon to take steps including granting them paid and unpaid leave, providing time during the workday to wash hands and take other safety steps, and stepping up contact tracing without relying on surveillance video. Staten Island warehouse workers have gotten sick and some have died, they said.

Amazon filed its brief one day after a California federal judge ruled in a Freedom of Information Act case that OSHA has to turn over the company's reports of workplace injuries and illnesses at facilities in Ohio and Illinois.

In a separate action, an Illinois state judge in June found that workers at McDonald's restaurants were likely to succeed on their argument that the fast food giant and the franchisee that employed them created a public nuisance with their inadequate measures to protect them from the virus.

A month earlier, pork producer Smithfield Foods Inc. successfully invoked a primary jurisdiction argument, persuading a federal court in Missouri to dismiss a lawsuit alleging it put workers at its Milan plant in danger because OSHA should have been their first recourse. Amazon's brief cites the Smithfield ruling.

Amazon declined to comment.

The workers are represented by Juno Turner, David Seligman and Valerie Collins of Towards Justice, Sienna Fontaine, Elizabeth Jordan and Frank Kearl of Make the Road New York, and Beth Terrell, Toby Marshall, Amanda Steiner and Blythe Chandler of Terrell Marshall Law Group PLLC.

Amazon is represented by Jason Schwartz, Avi Weitzman and Zainab Ahmad of Gibson Dunn & Crutcher LLP.

The case is Palmer et al. v. Amazon.com, Inc. et al., case number 1:20-cv-02468, in the U.S. District Court for the Eastern District of New York.

--Editing by Adam LoBelia.

For a reprint of this article, please contact reprints@law360.com.

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