NEW YORK (Legal Newsline) – The time is nearing when both federal and state judges step into Amazon’s war with New York Attorney General Letitia James.
In Amazon’s federal court case against James, the company just filed a motion for summary judgment as Brooklyn judge Brian Cogan also considers James’ motion to dismiss.
In state court, it is James who is the plaintiff. Nancy Bannon is the judge, and she has Amazon’s motion to dismiss and James’ June 15 response to it.
The sides are fighting over Amazon’s response to the COVID pandemic.
Amazon says it was justified in firing two employees who violated social distancing rules, even putting forth a picture of one of them ignoring orders to quarantine.
It also says the New York City Sheriff’s Office has found it went “above and beyond” compliance requirements at its facility there, and that James’ list of demands exceeds what is appropriate.
“Among other things, the OAG has demanded that Amazon ‘disgorge’ profits, subsidize public bus service, reduce its production speeds and performance requirements, reinstate Mr. Smalls and pay large sums to Mr. Smalls and Mr. Palmer for ‘emotional distress,’ retain a health and safety consultant to oversee safety and production, and adopt safety-related policies it already implemented,” the company wrote in a Feb. 12 federal court lawsuit.
Amazon calls the demands “exorbitant.” Its lawsuit seeks a declaration that AG James lacks the authority to regulate workplace safety responses to COVID-19 and regulate claims of retaliation.
James filed her case in New York County Supreme Court. It says Amazon has failed to institute reasonable and adequate measures to protect workers from COVID-19 at its Staten Island fulfillment center and its Queens distribution center.
“When Amazon employees began to object to Amazon’s inadequate practices and to make complaints to Amazon management, government agencies, and the media, Amazon took swift retaliatory action to silence workers’ complaints,” James’ suit says.
“In late-March 2020, Amazon fired employee Christian Smalls, and in early-April 2020, Amazon issued a final written warning to employee Derrick Palmer. Amazon’s actions against these visible critics who advocated for Amazon to fully comply with legal health requirements sent a chilling message to other Amazon employees.”
The timeline essentially is this: James threatened suit, Amazon sued her to block it in federal court, then James filed her own suit in state court.
Amazon’s motion for judgment in federal court says James can’t regulate claims of retaliation against employees because she is preempted by the National Labor Relations Act and the OSH Act.
“In October 2020, the COVID-19 infection rate among Amazon frontline employees in New York was half that of New York’s general population,” the company said. “All of this was not enough for the Office of the New York Attorney General which, for over a year, has unlawfully attempted to subject Amazon’s JFK8 fulfillment center in Staten Island and DBK1 delivery station in Queens to state oversight of activities governed exclusively by federal law and enforced by federal regulators.”
James has argued the federal court has no jurisdiction to hear Amazon’s gripes, considering they could raise those arguments in her state court lawsuit. Her latest motion to dismiss urged the federal judge to abstain from the issue.
In state court, she claims Amazon failed to comply with cleaning and disinfection requirements and failed to identify potential contacts of infected workers.
“Amazon’s response to the pandemic continues to be deficient with respect to ventilation, cleaning and disinfection; and limiting, through monitoring productivity and time off task, employees’ ability to take steps that are necessary to maintain social distancing, clean their workstations and engage in sanitary and hygienic practices necessary to protect themselves and co-workers from the spread of the virus,” her office wrote.