Amazon Workers End Bid To Get Immediate Virus Safety Order

By Jon Steingart
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Law360 (July 15, 2020, 9:43 PM EDT) -- Amazon warehouse workers suing for better COVID-19 protections at its Staten Island distribution center dropped their effort to get immediate changes, though their motion to change course drew an admonishment from the judge overseeing their case who said it looked like a press release instead of a legal argument.

In their Tuesday motion, the workers cited a Monday disclosure by the company saying they would not be penalized for taking time off at work to attend to personal hygiene. Amazon communicated to workers by email and with signs posted at the distribution center that it "temporarily suspended" worker productivity metrics, according to a declaration signed by the warehouse workplace health and safety manager.

"Rather than take up the court's time and resources with a hearing on a motion for preliminary relief where Amazon has meaningfully, if belatedly, addressed some of the key public health problems that motion sought to resolve, plaintiffs believe that the parties' time would be better spent promptly pursuing discovery on the remaining factual disputes in the case," the workers wrote in their request to withdraw the motion. The court granted the request the same day a minute order chastised the format of their filing and advised Amazon not to adopt the same style for its filings.

"A press release was not required to advise the court that plaintiffs are withdrawing their motion, and defendants are directed not to respond in kind," U.S. District Judge Brian M. Cogan wrote in the brief order.

Amazon's disclosure that it has relaxed productivity standards means "workers can attend to their health needs without worrying that they're going to be disciplined or potentially even terminated for failing to meet these production requirements," Juno Turner, one of their lawyers, told Law360. Although workers dropped the request for an injunction, the broader claims that Amazon has taken inadequate steps to protect workers will proceed, she added.

"We have factual disputes that will benefit from discovery before moving forward," Turner said.

The workers had asked for an injunction that would ensure they could take time at work to attend to hygiene without risking productivity demerits. They also wanted more paid and unpaid leave, and better contract tracing that doesn't rely on surveillance video.

In response to the workers' request for an injunction, Amazon contended that it suspended productivity requirements in March and noted that none of the workers who signed onto the lawsuit had been disciplined for low output.

An Amazon representative declined to comment on the case, but provided a statement that said "Nothing is more important than the health and safety of our employees. Since the early days of the pandemic, Amazon has invested more than $800 million in the first half of the year implementing 150 process changes to protect the health and safety of our employees. These changes have been communicated to our employees in real-time."

Amazon is trying to have the suit tossed by arguing that workers are taking advantage of COVID-19 concerns to pursue workplace reforms they've wanted since long before the pandemic took hold. It says the case shouldn't proceed in court because the laws they cite aren't even applicable to their situation. In any event, the workers first need to raise concerns with the Occupational Safety and Health Administration, it contends.

The workers sued in June, arguing that Amazon has violated occupational safety and health law. They also claimed it violated public nuisance law, a tactic that has been traditionally deployed in property and environmental cases but has been successfully argued in a coronavirus suit by McDonald's workers in Illinois.

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, Beth Terrell, Toby Marshall, Amanda Steiner and Blythe Chandler of Terrell Marshall Law Group PLLC, and Karla Gilbride and Stevie Glaberson of Public Justice PC.

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

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

--Additional reporting by Lauraann Wood and Vin Gurrieri. Editing by Adam LoBelia.

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