Labor Law Section 200 states that “The law requires all worksites to be “constructed, equipped, arranged, operated, and conducted as to provide reasonable and adequate protection to the lives, health, and safety of all persons employed therein or lawfully frequenting such places.”
Labor Law Section 191 outlines the frequency by which employees must be paid.
Manual Workers: Wages must be paid weekly and not later than seven calendar days after the end of the week in which the wages are earned. Manual workers for nonprofit entities must be paid in accordance with their agreed terms of employment but not less frequently than semi-monthly. Large employers of manual workers may apply to the Commissioner of Labor to pay manual workers semi-monthly.
Amazon Fends Off COVID-19 Claims
As reported by SHRM on November 6, 2020, workers at a New York Amazon warehouse sued Amazon earlier in the year for public nuisance, breaching the duty to protect the health and safety of employees under the New York Labor Law (“NYLL”) Section 200, and for the failure to pay employees for COVID 19 sick leave in a timely manner under NYLL Sector 191.
An attorney with Saul Ewing Arnstein & Lehr in Washington D.C., Rob Duston said that the Amazon workers’ legal theories “were a bit of a stretch.” This is because public nuisance “really isn’t applicable to contagious disease,” he said.
Another attorney with Conn Maciel Carey in Washington D.C. said that the decision “should be welcome news for employers who are operating during the pandemic and struggling to navigate the complicated and often changing federal and state regulatory framework to keep their workers safe and healthy.”
An attorney in Washington D.C. said that the “case relieves employers from having to defend against litigation designed to negate the role of OSHA.”
Michael Wietrzychowski another attorney stated, “The court left open the possibility that similar challenges could be made under other state laws that differ from New York state law.” But, the decision may be reconsidered by the district court or appealed, he noted.
In New York alone, COVID 19 had infected over 512,000 people and killed 33,000 others. Amazon’s fulfillment center in New York, which is running 24/7, is larger than 14 football fields, having thousands of employees in one warehouse.
The plaintiffs claimed that Amazon did not comply with applicable state workplace safety guidance within this warehouse.
First arguing that the Amazon productivity requirements prevented Amazon employees from performing basic hygiene, sanitizing, and social distancing. Amazon tracks their employees to determine whether they perform tasks in each minute and combines a total of time off tasks (“TOT”) for every day. By constantly monitoring their TOT workers will be warned and penalized if their TOT exceeds a certain amount.
TOT is automatically counted during paid rest breaks, these would include bathroom breaks and requires supervisors to change the TOT activities to stop them from counting against the Amazon employees.
The plaintiffs claimed that the fear of accumulating TOT causes many Amazon workers to skip washing their hands and sanitizing workstations and oftentimes rushing through the facility which causes them to be unable to socially distance.
In March 2020, Amazon suspended the rate requirements but the plaintiffs claimed the change was not communicated properly to employees until July. Allegedly there is still confusion on this new policy and productivity requirements could be reinstated at any time.
Amazon contact traces COVID 19 infections among its employees, but many plaintiffs claim that it was failing to do so adequately.
Additionally, the plaintiffs said that Amazon was failing to clearly communicate to their employees the availability of leave related to COVID 19 and did not pay workers for their required leave promptly. Lastly, the plaintiffs also said that Amazon’s leave policies were insufficient in encouraging workers to take time off of work if they experienced symptoms if COVID 19.
The plaintiffs sought to require Amazon to communicate clearly that when workers experience COVID 19 symptoms they should not come into work and will be paid on their next paycheck for taking quarantine leave.
Also, to continue the rate requirement suspension and refrain from counting the amount of hand-washing and bathroom breaks against TOT requirements, Provide workers with time and tools to clean their workstations properly, comply with New York’s COVID 19 paid-leave law, and for Amazon to improve its contact-tracing efforts.
The court decided that “No doubt, shutting down JFK8 completely during the pandemic while continuing to provide employees with pay and benefits would be the best protection against contagion at the workplace. But someone has to strike a balance between maintaining some level of operations in conjunction with some level of protective measures. The question is whether it should be OSHA or the courts.”
The courts decided that they are not experts on public health and workplace safety matters and that OSHA would be better equipped to handle this case.
The court’s decisions could lead to inconsistent rulings, while OSHA determinations would be more flexible and ensure uniformity, the court said. Additionally the court decided that New York’s workers’ compensation law preempts plaintiffs’ NYLL Section 200 claim for past harm and that COVID-19 leave did not constitute wages for purposes of Section 191, the court decided.
An Amazon spokesperson said, “Nothing is more important than the health and safety of our employees, which is why at the onset of the pandemic we moved quickly to make more than 150 COVID-19-related process changes. And, we continue to innovate, learn and improve the measures we have in place to protect our teams.” Groups that represent the workers called the decision “devastating” for Amazon and said they are considering whether to appeal.
If you feel you are unable to voice your concerns about your working conditions at Amazon, contact us for further assistance at CJ@AmazonSellersLawyer.com.
Our Amazon Employment Law Division can assist you in three ways:
(1) Do It Yourself: Knowledge & Forms;
(2) Done With You: Knowledge, Forms and Attorney Help Editing the Documents; and
(3) Done For You: We meet with you and draft the documents for you. We may also, in some cases, offer to fully represent the client.