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Workplace safety suit by Amazon warehouse workers revived

Save for one alleged labor violation, the Second Circuit affirmed dismissal of most claims related to Amazon's continued operations in the early days of the coronavirus pandemic.

MANHATTAN (CN) — Amazon must face a suit alleging that the e-commerce behemoth failed to adequately protect thousands of New York warehouse workers from Covid-19, the Second Circuit ruled Tuesday.

Though the federal appeals court revived a workplace health and safety claim against Amazon under New York Labor Law Section 200, it otherwise affirmed dismissal for the bulk of the warehouse workers’ federal claims, including that Amazon created a public nuisance by failing to protect workers against the spread of Covid-19 and did not properly provide payments for sick leave.

"As NYLL § 200 is a codification of the common law duty to provide workers with a safe work environment, a federal court here can look to New York’s common law to inform its determination as to whether Amazon breached the duty of care it owed to plaintiffs,” U.S. Circuit Judge William Nardini wrote in a 69-page opinion for a three-person panel. “And where common law principles are at play, we have determined that the issues should be addressed in a judicial forum."

The 2020 suit was brought by warehouse workers at Amazon’s JFK8 fulfillment center in Staten Island, who accused Amazon of discouraging and deterring workers from social distancing, washing hands and disinfecting workstations as the Covid-19 pandemic ravaged New York City.

Karla Gilbride, an attorney at Public Justice for the workers and their families, applauded Tuesday's reversal.

"Today’s opinion said in no uncertain terms that when workers are put at risk by Amazon’s practices that treat workers as expendable and put profits over people, workers can challenge those practices directly in court," Gilbride said.

U.S. District Judge Brian Cogan initially dismissed the case in full, ruling that the duty to set Covid-19 standards for workers is one that belongs to the Occupational Safety and Health Administration not the courts.

While the workers remain barred from advancing a claim for public nuisance under New York law — the ruling says they failed to allege a special injury — U.S. Circuit Judge Denny Chin argued in a partial dissent that the warehouse workers did face unique heightened Covid-19 risks due to the conditions of their employment by Amazon.

“The majority observes that because all New Yorkers faced the risk of contracting COVID-19, any injury suffered by Plaintiffs is one of a difference only in degree, not in kind. I disagree,” the Clinton appointee wrote.

“Plaintiffs lacked the autonomy to avoid the hazardous conditions arising from Amazon's conduct,” Chin's opinion continues later. “And unlike many members of the public, Plaintiffs were not permitted to work remotely. If anything, because the demand for packages increased during the pandemic, they had even less flexibility in that respect."

The workers' claim for a declaratory judgment and injunctive relief returns to Brooklyn federal court now on remand.

Circuit Judges Chin and Nardini, a Trump appointee, were joined on the panel by Senior U.S. Circuit Judge Dennis Jacobs, a George H.W. Bush appointee.

The ruling out of Manhattan was published Tuesday morning, shortly before Amazon workers in upstate New York overwhelmingly voted against organizing a union bid, handing a second defeat to the Amazon Labor Union, which has been attempting to drag Amazon to the negotiating table since its historic win in Staten Island earlier this year.

Representatives for Amazon did not immediately respond to requests for comment on Tuesday afternoon.

At Second Circuit oral arguments in May 2021, Amazon attorney Jason Schwartz had urged the appeals court to affirm deference to OSHA under the primary jurisdiction doctrine, calling judicial resolution a “square peg in a round hole” that the plaintiff workers are trying to force.

Gilbride argued meanwhile that Congress did not intend for OSHA to preempt state law remedies, and instead “especially contemplated a dual enforcement regime.”

Family members and the significant others of the Amazon workers had joined as plaintiffs in the suit led by whistleblower Derrick Palmer in New York’s Eastern District. Palmer's girlfriend claimed for example that her close proximity to Amazon safety issues kept her from spending time with her father in the months before he died.

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