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New York AG wants Amazon’s ‘anticipatory federal action’ over COVID-19 safety dismissed

By Pamela Wolf, J.D.

Amazon filed suit in federal court one day before the New York AG’s office filed a state court action over the online retailer’s allegedly deficient pandemic safety practices.

New York Attorney General Letitia James is asking a federal district court in New York to dismiss, or alternatively stay, Amazon’s “anticipatory federal action” against her office, which she says was designed to interfere with the Office of the Attorney General’s (OAG) imminent state-court proceeding against Amazon for its repeated failures to provide adequate COVID-19 health and safety measures at its New York facilities, and its retaliatory actions against employees who reported safety concerns.

Suit against Amazon. The State of New York filed its lawsuit in state court on February 16, 2021. According to the complaint, by failing to maintain a safe work environment and reasonably protect workers from the spread of COVID-19, Amazon violated New York State Labor Law (NYLL). Amazon also unlawfully fired and disciplined employees who spoke out about the company’s unsafe work conditions, the OAG contends.

Investigation and assessment. New York filed its lawsuit after an 11-month investigation, according to the OAG’s memorandum supporting its motion to dismiss Amazon’s federal suit. “Seeking to interfere with the OAG’s imminent state-court proceeding, Amazon filed this anticipatory federal action one business day earlier,” the memo states.

Preliminary assessment. But in its complaint against the OAG, Amazon says that less than a month after launching an investigation of its COVID-19 response, the OAG, based on its cursory investigation up to that point, “took the highly unusual step of making a ‘preliminary assessment’ that Amazon had violated safety requirements.” The OAG’s preliminary assessment purportedly included violations of the federal OSH Act and its regulations, and a determination that Amazon had unlawfully retaliated against two employees.

“The OAG’s letter to Amazon containing the preliminary assessment did not mention the New York City Sheriff’s Office’s findings that Amazon went ‘above and beyond’ applicable compliance requirements and that complaints to the contrary were ‘baseless,’ or include any other facts favorable to Amazon,” the online retailer wrote.

Threatened lawsuit. According to Amazon, the OAG had threatened to sue Amazon if it did “not immediately agree to a list of demands, many of which have no connection to health and safety and have no factual or legal basis.” The purported list included a demand that Amazon “disgorge” profits, subsidize public bus service, reduce its production speeds and performance requirements, and reinstate one discharged employee and pay large sums to that employee and another for “emotional distress,” retain a health and safety consultant to oversee safety and production, and adopt safety-related policies it already implemented.

Two disciplined employees. As to the two employees, Amazon said that it terminated one after he repeatedly violated social distancing requirements and an order to quarantine and stay off Amazon property, during which he was paid, due to a potential COVID-19 exposure, and it issued a final warning to other for failing to comply with social distancing requirements.

But as the OAG saw it, these employees were disciplined because they had raised concerns about Amazon’s response to the COVID-19 pandemic to managers, made public complaints about Amazon’s practices through the media, and submitted complaints to at least one government agency.

OAG driving outside its lane? In addition to applying an inconsistent and incorrect workplace health and safety standard, the OAG lacks the legal authority it purports to wield, according to Amazon. The federal OSH Act preempts the OAG’s use of state law to regulate workplace safety, Amazon argues, and, as the federal court had already held in litigation brought by one of the disciplined workers, OSHA has primary jurisdiction over workplace safety claims brought under New York Labor Law Section 200.

Further, Amazon contends that the National Labor Relations Act preempts the OAG’s claims that Amazon retaliated against the two employees for organizing and participating in protests about working conditions at Amazon’s JFK8 facility, and it is the National Labor Relations Board that enforces the NLRA. “Even if the New York Labor Law were not preempted in these circumstances, the Labor Law provisions on which the OAG relies create only a private right of action by the individual who is the victim of the alleged retaliation—and here, [the two employees] are already pursuing their own private actions with their own counsel,” the online retailer contends.

Reasons to dismiss Amazon’s complaint. The OAG argues that Amazon’s complaint should be dismissed at the outset because the federal district court lacks federal subject matter jurisdiction since Amazon has requested anticipatory declaratory and injunctive relief—including on federal preemption grounds—while at the same time disputing the meaning and application of state law. Here, among other things, the OAG cites a Second Circuit ruling that a bank’s “dispute over the meaning of state law deprived the federal court of subject-matter jurisdiction, reasoning that ‘opening the federal courts to preemption claims by plaintiffs raising disputes about the meaning and application of state law risks a major and unwarranted incursion on the authority of state courts.’”

Further, the OAG asserts that even if there is federal jurisdiction, Younger abstention is mandatory in this case because the state’s action is pending in state court, a safe and retaliation-free workplace is an important state interest, and the state action affords an adequate opportunity for judicial review of Amazon’s preemption defenses. The Wilton abstention doctrine also calls for the federal court to abstain from exercising jurisdiction, according to the OAG.

Failure to state a claim. As to the merits, the OAG contends that Amazon’s complaint fails to state a claim. OSHA has left COVID-19 workplace safety issues to the states, so there is no OSH Act preemption, and the primary-jurisdiction doctrine is inapplicable here. The OAG argues that it has authority under state law to pursue claims for NYLL violations. Moreover, NLRA preemption under Garmon does not apply to the OAG’s §§ 215 and 740 claims because the state action is different from the one that would be presented to the NLRB, and even if that were not the case, the local interest exception applies.

The OAG thus asked the court to dismiss Amazon’s federal court action.