On Tuesday, several Amazon employees filed a memorandum in opposition to Amazon’s motion to dismiss regarding Amazon’s Staten Island warehouse conditions during the COVID-19 pandemic, stating that their New York state law claims alleged that Amazon failed to follow the state’s public health and safety laws during the pandemic, which endangered workers and the public. Furthermore, the oppositon argued Amazon’s suggestion to bring their concerns to the Occupational Safety and Health Administration (OSHA) will do nothing because the agency “has affirmatively decided to ride out the pandemic on the sidelines.”
Specifically, the plaintiffs averred that Amazon’s conduct regarding the JFK8 warehouse during the pandemic has led to at least one employee death and allowed infected employees to spread COVID-19 to family at home. The suit asks the court to examine the “timeliness and adequacy of leave payments and whether Amazon has sufficiently informed its JFK8 workers of policies it claims to have implemented at the corporate level.” Amazon previously claimed that this suit was an attempt to circumvent OSHA, which Amazon argued should have jurisdiction over the purported issue. Amazon claimed that the plaintiffs’ workplace safety claims went too far and the public nuisance claims cannot be traced back specifically to Amazon because of New York’s large population and crowded public transportation.
The plaintiffs argued that the Eastern District of New York “should not defer” to OSHA under the primary jurisdiction doctrine because the plaintiffs’ claims “are not within the special competence of OSHA” and OSHA “has no jurisdiction over public health and safety issues governed by state law” because the agency follows federal workplace laws and regulations. The plaintiffs noted that their claims rely on New York’s “minimum requirements” for businesses operating during the COVID-19 pandemic and New York leave law, neither of which OSHA enforces, according to the plaintiffs. Additionally, “the rights (the p)laintiffs seek to vindicate here extend beyond the workplace and concern the health of the surrounding community, over which OSHA has neither expertise nor legal authority.”
The plaintiffs contend that Amazon’s argument that it is preempted by the OSH Act’s general duty clause “is inconsistent with the express language of the OSH Act permitting workers to bring state law claims in cases where employers beach their duties to workers.” Moreover, the plaintiffs stated that they do not need to establish the cause of injury in order to seek injunctive relief under the law.
Additionally, the plaintiffs averred that Amazon failed to pay wages under NYLL § 191, stating that COVID-19 Leave Law payments are under the provision of § 191 and are designed so workers do not have to “make the impossible choice between losing their job or providing for their family and going to work” and that workers were entitled to receive the hazard pay raise in their Leave Law payments. The plaintiffs added that this law includes a cause of action for a breach of these rights.
Consequently, the plaintiffs argued against Amazon’s practices after July 13, “because workers continue to be unaware of the modified productivity requirements.” Specifically, Amazon allegedly only informed some JFK8 workers “that it had suspended ‘time off task’ and other productivity-related penalties for time spent on safety measures,” but Amazon supposedly instructed managers not to post this information publicly, “meaning that workers remained unaware that they could engage in hygiene-related tasks without fear of discipline and defeating the purported purpose of Amazon’s policy changes.” The plaintiffs stated that they have standing to challenge Amazon’s practices before July 13, because they could occur again and they have standing to ensure new hires are informed about the modified productivity policies. The plaintiffs also argued that the Workers’ Compensation Law employer liability exclusivity does not bar their claims.
The plaintiffs claimed that “there should be no question that Plaintiffs plausibly allege the elements of these causes of action, which workers and the public have traditionally used to protect themselves from violations of public health and safety laws. These questions are not appropriately resolved on a motion to dismiss.”
The plaintiffs have sought injunctive relief on behalf of themselves and the putative class. They have also asked for the court to deny Amazon’s motion to dismiss, thus allowing the plaintiffs’ claims to proceed.
The plaintiffs are represented by Terrell Marshall Law Group PLLC, Towards Justice, Make the Road New York and Public Justice. Amazon is represented by Gibson, Dunn & Crutcher LLP.
