New York Attorney General Backs Whistleblowers In Lawsuit Against Amazon Over Pandemic Workplace Conditions

Backing claims of retaliation by two whistleblowers, the New York's attorney general sued Amazon for failing to protect workers during the COVID-19 pandemic.

The complaint [PDF] filed on February 16 covers Amazon's mistreatment or neglect toward workers at two facilities in New York City—a Staten Island fulfillment center and a Queens distribution center.

It notes Attorney General Letitia James obtained documentation with evidence of "adverse actions" taken against workers at the fulfillment center in "retaliation for raising health and safety concerns."

“While Amazon and its CEO made billions during this crisis, hardworking employees were forced to endure unsafe conditions and were retaliated against for rightfully voicing these concerns,” James declared. "Since the pandemic began, it is clear that Amazon has valued profit over people and has failed to ensure the health and safety of its workers."

Christian Smalls and Derrick Palmer worked at the fulfillment center and blew the whistle on hazardous workplace conditions in March 2020. They shared what they witnessed with the news media and the Centers for Disease Control and Prevention (CDC).

Although these were protected disclosures under labor law, Amazon fired Smalls and singled out Palmer for discipline.

Smalls was informed his employment would be terminated after he participated in a March 30 protest and called attention to health and safety issues. The corporation claimed he was terminated for "violating the quarantine order and for violating Amazon’s social distancing requirements by his conduct during the March 30 protest."

The two whistleblowers informed representatives they believed they came into close contact with an employee, who tested positive for COVID-19.

Before it was confirmed that Smalls would need to quarantine, Christine Hernandez, a human resources manager, discussed a plan for retaliation with a “human resources business partner” on March 27.

Hernandez and the “business partner” "anticipated that Amazon would issue Smalls a directive to quarantine and that he would violate it" by attending the March 30 protest.

Amazon never informed Smalls before or during the protest that he needed to leave because he was violating a quarantine order, according to the complaint. Nor was Smalls ever issued a written warning or instructed he would receive disciplinary coaching.

Communications show human resources recognized it was inappropriate for Amazon to approach Smalls with a "termination mentality."

Palmer complained multiple times to Amazon managers in late March and early April. He received a "final written warning" on April 10 for allegedly violating the fulfilment center's "social distancing policy" on March 25, 26, and 27. But Amazon never issued an initial warning indicating Palmer had violated Amazon policy.  

At Amazon, ninety percent of discipline for violations resulted in "documented coaching" and fewer than 10 percent resulted in "final written warnings." The corporation made an example out of Palmer.

"Following Amazon's discharge of Smalls and issuance of a final written warning to Palmer, Amazon employees reasonably fear that if they make legitimate health and safety complaints about Amazon's COVID-19 response, Amazon will retaliate against them as well," the complaint contends.

In addition to other remedies requested to deal with the lack of workplace safety, the attorney general’s complaint urges the state’s supreme court to award backpay and “emotional distress damages” and order Amazon to reinstate Smalls to his position. It also demands the court order Amazon to “rescind the discipline” against Palmer.

Previously, Palmer filed a lawsuit in a federal court in New York. It was dismissed after the court decided whether Amazon was compliant with COVID-19 safety guidelines was a matter for the United States Labor Department’s Occupational Safety and Health Administration (OSHA) to resolve.

OSHA has largely shirked its responsibility to protect workers, especially whistleblowers, and deferred to corporate executives.

In 2020, OSHA received 4,101 complaints between February 1 and May 31. That represented a 30 percent increase when compared to the same period in 2019. At least 1,600 related to the pandemic, yet only 400 of those cases were "docketed" or put on a list of pending complaints.

CNBC reported around the same time Smalls and Palmer voiced concerns, warehouse workers and delivery drivers were "forced to choose between going to work and risking their health or staying home and not being able to pay their bills."

The terrain largely remains as it was in the earliest stages of the crisis. As James put it, "Workers who have powered this country and kept it going during the pandemic are the very workers who continue to be treated the worst.”