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Law360 (October 14, 2020, 8:53 PM EDT) -- Amazon has revived policies tracking worker productivity that it previously said it had suspended as a precaution against COVID-19, according to a letter filed in New York federal court Wednesday by an attorney for a group of Staten Island warehouse workers suing for better virus protections.
The letter argued that Amazon's about-face should give U.S. District Judge Brian Cogan reason to reject the company's bid to dismiss the workers' lawsuit that seeks more COVID-19 protections at the warehouse. With the reversal, Amazon can no longer credibly claim the workers' concerns that the company might prematurely bring back unsafe policies are "speculative," the letter said.
"Amazon's reckless conduct presently places workers, their families, and by extension, the entirety of New York City at risk," the letter said.
The letter from Public Justice PC attorney Karla Gilbride accompanies a declaration from Amazon worker Derrick Palmer, who claims the company quietly reinstated the productivity policies earlier this month to speed up work during this week's Prime Day and the coming busy season.
The workers accused the company in June of violating workplace safety and health laws as well as creating a public nuisance by ignoring state and federal guidelines meant to slow the spread of the virus. They specifically challenged the productivity policies, which track how much work employees are completing and how much time they spend off task.
Amazon told the court this summer that it suspended the policies to allow workers more time to take virus mitigation measures like washing their hands and sanitizing their workstations. Though it told the court of the change in July while facing down an injunction request from the workers, the company said it had lifted the metrics starting in March.
But Palmer said conversations with coworkers, updates from an official Amazon app and a new message on a whiteboard in his department show that the company recently brought the policies back without updating Judge Cogan. Their return came around the same time that the company notified workers that three employees at the facility had tested positive for COVID-19, according to the declaration.
In the letter, Gilbride noted that cases of the virus in New York City have ticked up recently and alleged that the reinstatement of the policies conflicts with public health guidance and puts workers in the "untenable position" of having to choose between keeping themselves safe and risking discipline for missing productivity standards.
"Even though the pandemic is actually getting worse in New York City right now, instead of keeping those safety measures in place, Amazon is moving backwards on them," Gilbride told Law360.
Rachael Lighty, a spokesperson for Amazon, said the productivity policies apply to a small number of employees and include extra time for workers to "practice social distancing, wash their hands and clean their work stations whenever needed."
"We prioritize the safety and health of our employees and have invested millions of dollars to provide a safe workplace, including ensuring our performance expectations support the extra time needed for employees to sanitize their work area, wash their hands, and remain socially distant during breaks," Lighty said in a statement to Law360. "We have reinstated a portion of our process where a fraction of employees, less than 5% on average, may receive coaching for improvement as a result of extreme outliers in performance."
In addition to suggesting he toss aside Amazon's motion to dismiss, Wednesday's letter asked Judge Cogan to broaden discovery in the case so the workers can have access to more information about whether the company is following through with other workplace safety steps it has promised to take during the pandemic.
Amazon has moved to dismiss the workers' suit, and accused them of using the pandemic to fight for long-sought workplace changes. In a reply brief filed in early September, Amazon specifically argued that the workers' challenge to the productivity metrics was moot because they had been suspended.
The case drew the attention of roughly a dozen prominent Democratic lawmakers who filed a brief supporting the workers.
The workers are represented by Karla Gilbride and Stephanie Glaberson of Public Justice PC; Juno Turner, David Seligman and Valerie Collins of Towards Justice; Elizabeth Jordan and Frank Kearl of Make the Road New York; and Beth Terrell, Toby Marshall, Amanda Steiner, Blythe Chandler and Erika Nusser of Terrell Marshall Law Group PLLC.
Amazon.com Inc. and Amazon.com Services LLC are represented by Jason Schwartz , Avi Weitzman, Zainab Ahmad and Karl Nelson of Gibson Dunn & Crutcher LLP.
The case is Palmer et al. v. Amazon.com Inc. et al., case number 20-cv-2468, in the U.S. District Court for the Eastern District of New York.
--Editing by Abbie Sarfo.
For a reprint of this article, please contact reprints@law360.com.
