COVID-19 Employment Lawsuits Climbing the Courts: Second Circuit to Hear Previously Dismissed Public Nuisance and Workplace Safety Claims Against Amazon

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COVID-19 Employment Lawsuits Climbing the Courts: Second Circuit to Hear Previously Dismissed Public Nuisance and Workplace Safety Claims Against Amazon.

By Jesse Grasty, Esq., December 23, 2020

Employees at an Amazon warehouse in Staten Island have appealed the recent dismissal of their lawsuit, which alleged the company failed to comply with state and federal public health requirements during the COVID-19 pandemic. They will now bring their case before the United States Court of Appeals for the Second Circuit after recently filing an appeal on November 24, 2020.

In their lawsuit, Palmer v., Inc., 20-cv-2468 (BMC) (E.D.N.Y.), which was originally filed in June, the workers alleged that Amazon created a public nuisance and breached its duty to provide a safe workplace under New York Labor Law Section 200 because:

• Amazon’s productivity requirements prevent employees from engaging in basic hygiene, sanitization, and social distancing. For instance, they feared that stopping to wash their hands or sanitize their works stations would lower their productivity scores.

• Only two of the breakrooms at the warehouse are air conditioned, causing workers to cluster in those areas on hot days, further impeding social distancing.

• Although Amazon conducts contact tracing, Plaintiffs claim it fails to do so adequately. Specifically, they claim that while Amazon uses surveillance to track movements it does not conduct interviews to get more information.

In addition, Plaintiffs alleged that Amazon violated New York Labor Law Wage Payment Law under Section 191 by failing to clearly communicate to its employees the availability of leave related to COVID-19 and failing to promptly pay workers the required leave.

On November 2, 2020, Judge Cogan in the Eastern District of New York granted Amazon’s motion to dismiss the public nuisance and New York Labor Law Section 200 claims without prejudice and the New York Labor Law Section 191 claim with prejudice.

In dismissing the public nuisance and Section 200 claims, Judge Cogan held that those claims belonged before OSHA. The Court explained that, “The central issue in this case is whether Amazon’s workplace policies at [its warehouse] adequately protect the safety of its workers during the COVID-19 pandemic.” The Court further reasoned that analyzing Plaintiffs’ claims required “both technical and policy expertise,” which the courts lack.

The Court further held that even if OSHA did not have primary jurisdiction over these claims, it still would have dismissed them. The Court noted that a public nuisance claims requires a special injury. However, Plaintiffs’ alleged injury – increased exposure to COVID-19 – was common to all New Yorkers. As to the Section 200 claim, the Court held that these claims for past workplace injuries belonged exclusively before workers’ compensation.

The Court also dismissed the Wage Payment claim, rejecting the New York Department of Labor’s recent guidance and noting that the statute applied to unpaid wages, which did not include sick leave.

Plaintiff’s counsel disagreed with the Court’s ruling. In a statement, counsel maintained that the “civil justice system, and not an Occupational Safety and Health Administration that has been AWOL throughout this crisis, is the right place for these … workers and members of their households to pursue their claims.”

While it remains uncertain how the Second Circuit will rule on this issue, it is clear that we will continue to see an increase in claims related to COVID-19, as plaintiffs and their lawyers continue to vigorously pursue all potential claims. It will also be interesting to see if other courts follow suit with the Eastern District of New York and encourage workers to file workplace safety claims with OSHA rather than our courts.


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