On November 1, 2020, the United States District Court for the Eastern District of New York in Palmer et al. v. Amazon.com Inc. et al., No. 20-cv-2468, 2020 WL 6388599, dismissed a lawsuit against Amazon alleging failures to comply with New York law and “New York Forward” minimum requirements for businesses. The court held that it is the role of the federal Occupational Safety and Health Administration (OSHA), rather than the courts, to determine whether employers are doing enough to protect workers from COVID-19. In ordering dismissal of the lawsuit without prejudice, Judge Brian M. Cogan declined to issue an order compelling Amazon to provide additional COVID-19 protections to its employees.
Employees at Amazon’s JFK8 fulfillment center, located in Staten Island, New York, as well as individuals who live with the employees, filed a lawsuit against Amazon on June 3, 2020. The lawsuit asserted claims for (i) breach of the duty to provide a safe workplace under New York Labor Law (NYLL) § 200, (ii) public nuisance, (iii) failure to timely pay COVID-19 leave under NYLL § 191, and (iv) an injunction against future failure to timely pay COVID-19 leave.
Amazon tracks the amount of time associates spend working on their assigned tasks during their shift via the scanners that associates use to scan items, bins, and packages. When more than five minutes elapse between activities on the scanners, that time is aggregated into a “time off task” (TOT) total for the day. Employees may be subject to feedback if they hit certain benchmarks when they take time off during the day. Additionally, prior to the pandemic, employees were required to scan items at certain rates and were subject to feedback if they failed to do so. In March 2020, Amazon suspended its policy of providing productivity feedback, and informing employees that time spent maintaining social distancing standards, handwashing, sanitizing workstations, and using the restroom would not be tracked as time off.
Largely seeking injunctive relief, the plaintiffs argued in an amended complaint that Amazon’s operations and policies at JFK8 failed to comply with New York law and “New York Forward” minimum requirements. (New York Forward is the state’s COVID-19 reopening plan.) Specifically, the plaintiffs argued that Amazon’s timekeeping method incentivized associates to skip basic cleaning and rush through the facility in a way that prevented social distancing. The plaintiffs also argued that Amazon did not clearly communicate the availability of COVID-19 leave to its employees or promptly compensate associates for their required leave.
The Parties’ Arguments on the Motion to Dismiss
Amazon moved to dismiss the amended complaint on August 11, 2020. Specifically, Amazon asked the court to invoke the primary jurisdiction doctrine, which allows a district court to refer a case to an administrative agency in the first instance if the claims at issue fall within the special competence of the administrative body. In response, the plaintiffs argued that the claims were not within the special competence of OSHA, and that OSHA lacked jurisdiction over public health and safety issues governed by state law.
Next, Amazon argued that the Section 200 claim failed because (i) it was preempted by the federal Occupational Safety and Health Act (OSH Act) and barred by New York’s Workers’ Compensation Law, and (ii) the plaintiffs had not alleged that Amazon’s work environment uniquely created a risk of contracting COVID-19 or proximately caused the plaintiffs’ injuries. In response, the plaintiffs argued that the OSH Act expressly preserved state tort and statutory claims codifying the right to a safe workplace. The plaintiffs also argued that they did not need to allege that Amazon had proximately caused their injuries because they sought injunctive relief instead of monetary damages, and Section 200 is prophylactic in nature. Next, the plaintiffs argued that workers’ claims for injunctive relief are not precluded by workers’ compensation schemes.
Finally, Amazon argued that the putative class claims for unpaid or untimely wages should be dismissed because quarantine benefits and supplemental pay are not “wages” under the NYLL, and the plaintiffs lacked standing to challenge hypothetical future underpayments. The plaintiffs argued that leave compensation is a benefit covered under the NYLL’s definition of wages and under New York State Department of Labor (NYS DOL) guidance.
The Court’s Analysis
The court granted Amazon’s motion to dismiss in whole. Judge Cogan dismissed the plaintiffs’ public nuisance and NYLL § 200 claims without prejudice, and he dismissed the NYLL § 191 claims with prejudice.
Application of the Primary Jurisdiction Doctrine
The court held that the doctrine of primary jurisdiction applied to the plaintiffs’ public nuisance and Section 200 claims. In applying the doctrine, the court considered four factors enunciated in the Second Circuit Court of Appeals case Ellis v. Tribune Television Co.:
- whether the question at issue is within the conventional experience of judges or whether it involves technical or policy considerations within the agency’s particular field of expertise;
- whether the question at issue is particularly within the agency’s discretion;
- whether there exists a substantial danger of inconsistent rulings; and
- whether a prior application to the agency has been made.
In addressing the first two Ellis factors, the court stated that the central issue in the case was whether Amazon’s workplace policies at JFK8 adequately protected the safety of its employees. Holding that courts “lack the training, expertise, and resources to oversee compliance with evolving industry guidance,” the court ruled that the claims and proposed injunctive relief “[went] to the heart of OSHA’s expertise and discretion.” Ultimately, the court recognized that OSHA’s determinations would afford necessary flexibility that the court system could not provide.
In addressing the third factor, the court held that the possibility of inconsistent rulings weighed “in favor of applying the doctrine of primary jurisdiction.” Discussing the fact-intensive nature of workplace safety disputes, the court reasoned that COVID-19 regulations were “fraught with medical and scientific uncertainty” and better suited for OSHA than the courts. The court also addressed the fourth Ellis factor, deciding that the plaintiffs’ failure to file an application with OSHA did not outweigh the other factors.
Additionally, the court held that even if it had not applied the primary jurisdiction doctrine, the plaintiffs’ public nuisance and Section 200 claims would still have been dismissed.
Conduct that causes the spread of a contagious disease can constitute a public nuisance if it violates the public’s right to health and safety and causes injury. The court explained that individuals can bring private causes of action for public nuisance “only if it is shown that [they] suffered special injury beyond that suffered by the community at large,” and the injury alleged “must be different in ‘kind,’ not simply ‘degree,’” from injuries suffered by the public. Ultimately, the court held that the plaintiffs alleged that they had suffered an injury “common to the New York City community at large.” The court reasoned that JFK8 was not the source of COVID-19, and the public at large could not avoid COVID-19 simply by avoiding JFK8. Accordingly, the court held that any injuries alleged by the plaintiffs were different in degree, rather than kind, from those suffered by the public.
NYLL § 200
The court also held that the plaintiffs’ NYLL § 200 claim should be dismissed regardless of whether the primary jurisdiction doctrine applied. While agreeing with Amazon that the plaintiffs’ Section 200 claim was “in tension with the OSH Act,” the court ultimately held that the law was not preempted because “the OSH Act’s savings clause expressly excludes statutory tort law claims from preemption.”
However, the court ruled that the plaintiffs’ Section 200 claim was “barred by New York’s Workers’ Compensation Law.” After holding that the Workers’ Compensation Law was the “exclusive remedy of an employee against his [or her] employer for injuries sustained in the course of employment,” the court noted that the exclusivity provision expressly served “in place of any other liability whatsoever” for an employer to an employee. Accordingly, in the court’s view, the broad wording of the provision indicates that the workers’ compensation scheme applies to injunctive relief and monetary damages alike.
Additionally, the court held that the plaintiffs could not maintain a Section 200 claim for future harm. Specifically noting that the plaintiffs had sought to “hold Amazon liable for an alleged breach of duty that [was] ‘likely’ to cause [the] plaintiffs ‘to experience future harm,’” the court ruled that the plaintiffs must sustain physical harm before they can recover in tort. The court reasoned that this requirement serves numerous critical purposes, such as defining the class of individuals who possess a cause of action, providing a basis to determine whether an individual possesses a claim, and protecting court dockets from being flooded with unfounded claims.
Dismissal of Plaintiffs’ NYLL § 191 Claims
NYLL §191 establishes that wage payments are due to manual workers not later than seven calendar days after the end of the week in which the wages are earned. The court noted that the NYLL establishes that the term “wages” includes “benefits or wage supplements” as defined in NYLL § 198-c, which includes paid sick leave, such as COVID-19 leave. However, in dismissing the Section 191 claim, the court noted that Section 191 includes an exception to its timely payment requirements, which applies to benefits and wage supplements defined in Section 198-c.
The court also addressed the plaintiffs’ argument that the NYS DOL’s “Frequently Asked Questions” webpage, which states that “paid sick leave payments are subject to the frequency of pay requirements of Section 191,” was entitled to deference. In rejecting the argument, the court held that the NYS DOL’s position was not entitled to deference because it conflicted with the plain language of the NYLL and its prior guidance that “‘no ‘correct’ or ‘prescribed method’” of payment of paid sick time exists.
As the effects of the COVID-19 pandemic persist, employers can expect to face challenges from employees relating to a range of issues, including workplace safety and compensation or benefit-related claims. While it is not yet known whether the plaintiffs will appeal or whether other courts will adopt Judge Cogan’s analysis, the decision may signal a willingness by the judiciary to defer to OSHA and its agency expertise to address workplace safety cases seeking injunctive relief.
The decision also reconfirms that paid sick leave benefits are excluded from Section 191’s timely payment requirements. Employers may still want to be aware of all frequency-of-pay requirements in their jurisdictions. While Amazon’s victory is welcome news for employers, the decision may simply prompt other litigants to focus on causes of action or remedies that are not foreclosed by the ruling.