Amazon Workers Suing Over Virus May Have To Turn To OSHA

By Pete Brush
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Law360, New York (July 21, 2020, 4:45 PM EDT) -- A Brooklyn federal judge said Tuesday he is "not entirely comfortable" with assessing health and safety conditions at an Amazon warehouse in Staten Island, telling counsel for the workers seeking COVID-19 protections that they may have to turn to the Occupational Safety and Health Administration.

The comments came from U.S. District Judge Brian M. Cogan at a teleconference to discuss the e-commerce giant's plan to seek dismissal of claims brought by six plaintiffs including workers Derrick Palmer and Barbara Chandler. Judge Cogan set a briefing schedule to last though August.

Six total plaintiffs — workers and their loved ones — said in their June complaint that Amazon's failure to keep its JFK8 warehouse in Staten Island safe during the COVID-19 pandemic has led to the death of at least one worker and caused others to bring the virus home. They want Amazon to pay workers for leave, not force workers to work if they are sick, and give workers more time for safety precautions, according to the suit, which also seeks damages for alleged nonpayment and late payment of wages.

But an Amazon lawyer said Tuesday that the suit is essentially an attempt to make an end run around OSHA, which has the authority to regulate workplace safety and health conditions.

"OSHA is entitled to great deference in this area," Amazon counsel Jason Schwartz told Judge Cogan. "The court should defer to the Occupational Safety and Health Administration."

Judge Cogan said he was not prejudging the case but did indicate Amazon's argument may be a winner, saying he is "not entirely comfortable" with stepping into OSHA's shoes. The judge suggested the plaintiffs are trying to "jump the line" as the agency prioritizes other work, including COVID-19 regulations for the health care industry.

Counsel for the plaintiffs, Karla Gilbride, pushed back against that notion, pointing out that her clients have common law nuisance claims as well as causes of action under New York labor law that leave the judge with discretion regardless of the scope of OSHA's authority.

"The workers in this case are worried about their families' health," she said. "That is not something that OSHA has any regulatory authority over."

But even there Judge Cogan reiterated that his court may not be the best place to fix problems that may continue in the wake of the lawsuit.

"I understand the workers are worried. We're all worried," the judge said.

The back-and-forth regarding whether Judge Cogan should exercise jurisdiction over health and safety claims came amid disagreement over whether workers, including Chandler, who missed time because of the virus have been properly compensated.

Amazon filed in an affidavit asserting that Chandler and others have been properly paid — a claim that counsel for the plaintiffs disputed.

On that matter Judge Cogan said the plaintiffs may take limited discovery on the details of what Amazon has paid out.

"Let's find out exactly what Amazon is doing," the judge said.

In the coming days the plaintiffs also may update their complaint in part to flesh out their labor law and compensation allegations, Judge Cogan said.

Requests for comment from counsel were not immediately returned.

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

Amazon is represented by Jason Schwartz, Zainab Ahmad, Avi Weitzman and Karl Nelson 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 Lauren Berg. Editing by Daniel King.

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