Amazon won a legal victory on Nov. 1 in Palmer v. Amazon.com Inc.[1] when the U.S. District Court for the Southern District of New York dismissed a lawsuit filed by several workers and their household members, which primarily sought to compel the company to follow COVID-19-related workplace safety guidelines, through a combination of tort claims and New York Labor Law provisions.
Although Amazon's victory limits the avenues of relief for the plaintiffs' COVID-19-related safety claims, the legal battles are far from over. In light of this, as well as reputational considerations, there are a number of steps employers can and should take to protect their workers from exposure and to protect their businesses.
The Allegations
The plaintiffs alleged that at JFK8, an Amazon fulfillment center on Staten Island, the company's workplace practices meant that, as a practical matter, they were unable to follow New York's industry-specific workplace health and safety guidelines.
For instance, the plaintiffs alleged in their amended complaint that Amazon's aggressive productivity requirements and large physical plant prohibited employees from complying with hand washing, sanitizing and social distancing mandates.
In addition, the plaintiffs alleged that Amazon's contact tracing and employee screening measures were inadequate. The plaintiffs asserted claims for public nuisance and breach of the duty to protect employee health and safety under the New York Labor Law, as well as wage-related claims grounded in Amazon's alleged failure to properly notify and provide employees with paid COVID-19-related paid leave.
The primary relief sought was injunctive relief requiring Amazon to provide safety measures and comply with COVID-19 related leave laws, in addition to damages for the COVID-19 leave-related claims.
The Dismissal Decision
The court dismissed the public nuisance and Labor Law health and safety claims without prejudice under the primary jurisdiction doctrine, finding that the Occupational Safety and Health Administration was best positioned to evaluate the claims and order relief, if appropriate. The U.S. Court of Appeals for the Second Circuit test to evaluate whether a government agency has primary jurisdiction over the dispute weighs the following factors:
- Whether the issue is best suited for judges or an agency that has particular technical or policy knowledge;
- Whether the issue falls in the scope of the agency's discretion;
- The likelihood of inconsistent rulings; and
- Whether the plaintiffs have already presented the issue to the agency.
In addition, courts are instructed to balance the advantages of referring the matter to the agency against the disadvantages of potential complications and delays associated with administrative proceedings.
Applying this test, the court noted that, in essence, the plaintiffs were requiring the court to wade into the details of how Amazon manages its workplace. The court said it was ill-equipped to apply public health and safety standards to Amazon's workplace, particularly in light of the fast-moving and novel issues presented by the pandemic.
The court observed that OSHA had been addressing these particular issues during the pandemic, exercising its discretion in determining how to set guidance and employing enforcement mechanisms.
The court also noted there was a risk of inconsistent rulings because the matter concerned dynamic questions of state and federal guidance where "[t]here is room for significant disagreement as to the necessity or wisdom of any particular workplace policy or practice."
Applying the fourth factor, the court observed that plaintiffs could have applied for relief to OHSA, but chose not to. Finally, the court found that although referring the matter to OSHA could result in delays, this was in part caused by plaintiffs' failure to pursue a parallel track in applying for relief from OSHA.
The court went on to analyze the merits of the claims, which it found would not survive a motion to dismiss. The claim for public nuisance claim did not pass muster because the injury in question was faced throughout community at large, whereas a private cause action for public nuisance requires a showing of special, distinct kind of injury.
The court found that while the state safety claims, anchored in the New York Labor Law, were not preempted by the Occupational Safety and Health Act, the claim for past harm was preempted by the New York Workers' Compensation Law and the claim for future, unspecified harm was not cognizable as a tort claim. The court also found that there was no private right of action for COVID-19 related leave obligations under the New York Labor Law.
Key Takeaway for Employers
While the Amazon decision creates another legal barrier for employees seeking relief, this is not the end of the story. The plaintiffs may appeal the district court decision and/or seek relief through OSHA. It is also possible that the changing political landscape may result in more robust safety enforcement by the government.
In addition, the decision has limited geographical and jurisdictional reach. Some jurisdictions have more comprehensive employee safety protections, with their own standards. For example, in Hernandez v. VES McDonald's, a California state court judge ordered a McDonald's franchise to take various remedial measures under the state's robust public nuisance law.[2] State and local workplace safety enforcement agencies have also been increasingly active during this time.
For businesses, the stakes of facing litigation are high. The cost of defending these claims could be prohibitive, and there may be questions about insurance coverage for such claims. In addition, the risks of being called out for workplace safety practices are potentially even more damaging to a business and its reputation.
Given the uncertainty of litigation and the possibility of a shifting legal landscape, employers should carefully study the applicable state, local and federal health and safety laws and guidance and take caution to ensure their management practices. In addition, businesses should consult with any industry associations on best practices.
We've seen clients adopt a variety of measures to track and ensure compliance. Because the web of health and safety laws is so complex and ever-changing, many of our clients have convened a safety committee and/or appointed a chief safety officer. These leaders are then tasked with monitoring and reviewing the various federal, state, local and industry-specific guidance and regulations, so they are prepared to respond to emergencies as they arise.
In addition, companies should develop effective safety policies and plans, which are mandated by some states, train employees on compliance, and have employees sign an acknowledgment of receipt of these documents. Once developed, those internal safety teams should be tasked with regularly reviewing and evaluating health and safety developments, and updating policies and procedures as appropriate.
Many companies that require the onsite presence of workers have developed careful screening processes, sometimes mandated by state or local government, which help avoid transmission of disease and facilitate contact tracing where required. Other companies have chosen to keep their employees remote where possible or bring in employees in phases.
Taking these and other safety steps not only protects a company from legal claims but also protects the business. In addition to the reputational reasons why employers would want to maintain strong safety practices, keeping employees safe is good for business. When employees are ill, it causes chaos and can distract employees from their work — or undermine staffing altogether. Being strategic about safety planning is a win-win for all involved.
If you have any questions about this topic, please contact the authors Kevin Doherty, Jessica Shpall Rosen and Keli Liu or your personal Greenwald Doherty contact.
