Receding Virus May Put Amazon Dispute in Rear View

Optimistic about life coming back to New York City, a federal judge appeared ready to throw out the suit that accuses Amazon of fumbling safety protocols in the early days of the Covid-19 pandemic.

Democratic lawmakers stand outside an Amazon plant in Bessemer, Ala., on March 5, 2021. (Courthouse News photo/Daniel Jackson)

MANHATTAN (CN) — A judge overseeing New York state’s legal war over Covid-19 protections for Amazon workers suggested Tuesday that the dispute might have hit its expiration date, given the virus is on the decline.

Asserting that any actions taken would be a “pale shadow” of what they would have been months ago, U.S. District Judge Brian Cogan quoted the low Covid-19 positivity rate recently reported by state officials to support indications that New York has “practically recovered” from the deadly virus.

“The masks are gone, the restaurants are open … and the safety measures mentioned [in the lawsuit] don’t seem really necessary,” Cogan noted during a Tuesday morning conference call between the parties.

New York Attorney General Letitia James brought the lawsuit earlier this year, contending that Amazon violated several state labor laws by failing to ensure employees were protected from Covid-19.

Cogan, who was appointed to the Eastern District of New York in 2006 by George W. Bush, questioned the point of the case Tuesday at a time when companies are now reducing protections.

“Is there any chance that events in the world have made disputes between these two parties moot?” he asked.

Assistant Attorney General Fiona Kaye noted that, while transmission is down and the economy is reopening, deaths from Covid-19 are still fairly high. “The pandemic is still ongoing,” she said.

According to recent data, New York City’s positivity rate hovers around 0.5%. The city’s positivity rate has been dropping since mid-April, when it had spiked to a 3.2% seven-day average.

The suit from James notes that Amazon was one of the few businesses allowed to stay open amid spring 2020 shutdown orders because it provided an essential service, delivering groceries and other goods to millions of now-homebound Americans. To the detriment of worker safety, according to James’ complaint, Amazon remained laser-focused on profits, forcing workers at facilities in Staten Island and Queens to perform at “dizzying speeds, even if doing so prevents them from socially distancing, washing their hands, and sanitizing their work spaces.”

Amazon has accused James of wholesale copying allegations raised by Derrick Palmer and Christian Smalls — employees whom Amazon in one case fired and in the other issued a written warning after they organized walkouts over safety conditions at Amazon fulfillment centers.

The suit by James said Amazon should have to close its distribution centers for cleaning, ventilation and disinfection when an infected employee had been present within seven days. She noted that Amazon had failed to undertake those measures in at least 80 situations at one of the facilities alone. The complaint also sought back pay and emotional distress damages for Palmer and Smalls.

“Amazon has cut corners in complying with the particular requirements that would most jeopardize its sales volume and productivity rates, thereby ensuring outside profits at an unprecedented rate of growth for the company and its shareholders,” the complaint alleges.

Amazon countersued James in February, alleging that she had investigated Amazon in bad faith and lacked the legal authority to regulate workplace safety, noting the Occupational Safety and Health Administration had primary jurisdiction to address the alleged violations.

This action emphasized how Amazon expanded its paid and unpaid leave programs during the pandemic, required social distancing among employees, formalized contract tracing processes, and mandated daily temperature checks of all employees at those and other sites.

The question of jurisdiction has provided another sticking point for the litigation, one that Cogan noted may be the main issue — and a tough one — for the AG office to overcome. “My preliminary impression is you’re going to have a tough time with that,” Cogan told Kaye during the conference call.  

Kaye argued that the suit against Amazon had been brought as a way to protect New Yorkers, and that it was neither retaliation against Amazon for anything nor brought in bad faith. “It is pretty incredible that Amazon says that,” she argued, adding that state attorneys general have the presumption of acting in good faith in such cases.

She added that since the state seeks damages for infliction of emotional distress — something neither the National Labor Relations Board nor OSHA can seek — the AG’s complaint was made in good faith.

Jason Schwartz of Gibson Dunn argued for Amazon that the NLRB has clear jurisdiction on matters that deal with worker discipline, and that the labor board is working to determine whether Smalls and Palmer engaged in protected whistleblowing activity when Amazon disciplined them.

Amazon’s complaint against AG James will not be a jury trial but will be decided by Cogan. It is likely the case won’t be decided until at least July, based on scheduling.

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