Early on in the pandemic New York Attorney General Letitia James promised an investigation into Amazon’s safety practices and, by god, she delivered.
Last night, James filed an expansive lawsuit against Amazon with the New York State Supreme Court for a myriad of alleged failures to adequately protect workers from covid-19 and retaliation against whistleblowers. Amazon, anticipating the allegations, fired off a preemptive lawsuit last week asking a New York federal court to toss out James’s forthcoming suit. Barring the sliver of a chance that Amazon gets a swift victory in its opening salvo, prepare for a bitter war.
The James suit is a satisfying answer to last year’s series of nationwide protests by Amazon workers treated as disposable for the sake of Amazon’s bottom line, encapsulated by one wonderful Detroit worker who pointed out that “dildos are not essential items.” The New York Attorney General’s suit specifically focuses on a Staten Island fulfillment center, JFK8, and Queens distribution center, DBK1, which, combined, employ over 5,000 people. Both facilities have generated protests and dismal headlines.
Adding to JFK8’s running reputation for hazardous conditions, the Verge reported in April 2020 that the warehouse seemed to be an early “hotspot” for the virus, though the company neglected to inform workers of covid-19 cases for days. DBK1 didn’t fare much better, according to a handful of accounts. In March, Gothamist reported that Amazon reopened the warehouse hours after its first confirmed covid-19 case. During that time, Vice later reported, managers at the same warehouse were scrounging cleaning supplies from stores and failing to conduct safety audits. (Unfortunately, we don’t learn much more about DBK1 from the AG’s investigation, due to a lack of available documentation.)
The conclusions from the New York Attorney General’s investigation place the above accounts against a larger backdrop of the scale of Amazon’s awareness of covid-19 rates within its ranks, and the lengths the company went to to discourage employees from speaking.
According to James’s suit, Amazon explicitly asked workers not to warn each other about their diagnoses. The company, it states, “has instructed infected workers not to communicate their infections with coworkers and instead to rely on Amazon’s contact-tracing program.” It goes on to note that “until at least late-June of 2020,” the program was, apparently, dangerously slow; it comprised video surveillance which “did not show all areas of the warehouse” and took 72 hours to review.
“Until at least late-June 2020, Amazon did not interview the infected worker for the purpose of determining close contacts,” it reads. “On occasions when a worker reported to Amazon having close contact with an infected coworker, Amazon dismissed the worker’s concerns and did not investigate or follow up on such information,” it adds. James asserts that Amazon limited the contact-tracing pool by only following up with workers who could provide medical documentation of a positive diagnosis.
For one, the AG’s office says that Amazon was aware of a staggering 250 confirmed cases at JFK8—about 7% of their non-peak-season workforce—90 of whom were on the job around the time Amazon was notified. The AG’s office says that Amazon closed or partially closed its warehouse in only seven of those cases.
It also claims that Amazon still relies on its own workers to clean their workstations, and even then, the complaint adds, they could be subjected to Amazon’s ghoulish “time off task” (TOT) system; managers can, the suit alleges, issue a TOT write-up for time spent maintaining personal hygiene, sanitizing, and follow social distancing measures. (TOT is Amazon surveillance speak for time spent not actively laboring; enough TOT warnings can get you fired ,as we’ve written about extensively.)
When asked whether such practices could be labelled time off task, an Amazon spokesperson told Gizmodo that “all performance targets have been built to allow for extra time so that associates can continue to practice social distancing, wash their hands and clean their work stations whenever needed.”
A worker from DBK1, who was granted anonymity for fear of reprisal, told Gizmodo that they’d never experienced a time off task warning for sanitizing. They also offered that they appreciate now-fairly regular onsite covid testing. Substantiating James’s assertions though, they claimed that coworkers who contracted covid-19 were instructed to keep their diagnoses private.
Social distancing mandates, they said, can feel arbitrarily applied and unfair: managers are willing to cram workers onto a belt, but write people up for sitting too close in the break room. And with the removal of hazard pay, and a return to stricter attendance policies, Amazon warehouses seem like “even more of a panopticon police state than they were before.”
Letitia James’s lawsuit incorporates one prominent case of alleged retaliation: Christian Smalls, a JFK8 employee who was fired last March after contacting the CDC and organizing a protest. At the time, Amazon claimed that it fired Smalls immediately after the protest for violating quarantine rules. But the New York Attorney General’s investigation suggests that this excuse is a little disingenuous: days earlier, Smalls had informed HR that he’d been in contact with a coworker diagnosed with covid-19, and he was not put on quarantine. Only after discussion of the protest circulated did HR devise a firing that would exempt them from “perceived retaliation.” It reads:
During the afternoon of March 27, [JFK8 Human Resources Manager Christine] Hernandez and the HRBP communicated that they anticipated that Amazon would issue Smalls a directive to quarantine and that he would violate it by attending a protest at the JFK8 facility scheduled to occur on March 30.
The suit claims that Smalls never entered the building, nor was he told that being outdoors violated the quarantine order, and hours later, he was fired without any prior warnings or conversation.
Amazon’s complaint presents an alternate version of events, vilifying Smalls and blaming him for creating a workplace health risk. It claims that he not only violated the quarantine order but “repeatedly violated social distancing requirements” (which Amazon backed up, not a little creepily, with distant photos from the protest). The company claims that after reviewing video surveillance for contact-tracing purposes, they’d noticed Smalls had stood within less than six feet of a person who later tested positive [emphasis theirs] “for approximately 46 minutes.” Smalls, it says, showed “blatant disregard for social distancing” and “placed him at risk of contracting and spreading COVID-19.” Amazon goes on to complain that Letitia James “publicly condemned” the termination “before conducting any investigation to ascertain these or any other facts” (James tweeted that the firing was “disgraceful” and called for an NLRB investigation the day of.)
In a total of 81 pages, the complaint of course expounds on all of the provisions Amazon has claimed to offer on a national scale throughout the pandemic, which are too long to list here, but: required social distancing, temperature checks, staggered shift times, “enhanced cleaning protocols,” mask distribution, “daily disinfectant spraying,” onsite covid-19 testing, a one-time bonus, and “expanded paid and unpaid leave programs.” (Unlike the fleeting $2/hour pay boost, an Amazon spokesperson told Gizmodo via email that the company continues to offer two weeks paid leave for workers who need to quarantine or need treatment for covid-19.) Amazon claims that by mid-December it had administered around 2,000 total tests to JFK8 employees alone. Apparently, nearly 20,000 confirmed covid-19 cases (Amazon’s estimate, as of October) is an acceptable employee illness rate.
The suit leaves not even the tiniest pebble unturned, including multiple hand washing graphics and a letter Amazon’s Worldwide Consumer business CEO Dave Clark sent to Joe Biden asking for early vaccinations for their employees.
And, with a hint of saltiness, Amazon also details an unannounced March 30th pop-in (at the mayor’s behest) from a New York City Sheriff’s Office lieutenant, who concluded that JFK8 revealed “absolutely no areas of concern” and that criticisms of the facility were “completely baseless.”
But the bone James is picking is more about the practical implementation of the aforementioned measures, which is precisely why the suit names two specific warehouses.
Amazon’s legal argument hinges not on rebutting allegations, but in arguing that workplace safety is outside James’s jurisdiction—which should be the purview of OSHA, the company believes. She’s making a set of “unreasonable demands,” Amazon claims, including asking Amazon to subsidize bus service for the MTA (if she did ask for this, it didn’t end up in her suit). It also claims that the Attorney General’s office has “no power to file employment claims,” supporting this assertion by pointing out that Smalls and a fellow censured organizer Derrick Palmer have filed their own claims—sort of a self-own. Amazon asked the court to find that James lacks the authority to regulate the issues raised in her suit—essentially, that she back off.
James is asking the court for back pay and emotional distress damages for Smalls and Palmer. She also generally asks for disgorgement of profits, which is probably unquantifiable between two facilities but fun to imagine.