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Why Amazon’s Suing the New York Attorney General

Amazon sued New York’s attorney general to stop the state from taking legal action over its early Covid-19 response, including its firing of outspoken distribution center manager Christian Smalls.

In a complaint in Brooklyn federal court, Amazon accused Letitia James of overstepping bounds by legally threatening the e-commerce giant and demanding remedies like its surrender of profit.

The suit says that federal labor and safety laws preempt those of the state, from which Amazon is seeking injunctive relief.

The events leading up to the suit go back to March 30, 2020, when Smalls organized a walkout at the company’s Staten Island, N.Y., distribution center, known as JFK8. Smalls and approximately 100 employees walked out of the warehouse in protest of conditions they described as unsanitary amid the worsening Covid-19 pandemic. They also complained of a lack of transparency from Amazon officials about containment measures after one of the warehouse’s workers tested positive for the virus.

Smalls, who showed up to the building while he was under paid quarantine, was fired immediately after the walkout due to allegedly violating Amazon’s health guidelines. More than five weeks after the protest, the warehouse confirmed that an employee died from Covid-19.

As of September, more than 19,000, or 1.44 percent, of Amazon’s U.S. frontline employees contracted Covid-19, the company has said, though it has not since updated this number.

Amazon’s treatment of JFK8’s Smalls, along with its perceived failings at keeping its employees safe, prompted shock and outrage from local elected officials and Washington lawmakers.

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In November, Smalls filed a class-action suit against Amazon in the Eastern District of New York, alleging “Amazon was not taking the temperatures of workers before allowing them to commence work nor providing its workers with personal protective equipment or hand sanitizer nor adequately enforcing social distancing within the facility nor following New York or CDC guidance for cleaning and disinfecting the facility.”

The class-action also alleges discrimination for firing Smalls, who is Black, and for putting Black and Hispanic workers at heightened risk of contracting Covid-19. The suit seeks unspecified damages for Black and Hispanic workers at the facility where Smalls was employed.

While James hadn’t filed a suit yet, she wrote to Amazon in April expressing “serious concern” it was trying to silence critics of its health and safety measures. She launched a probe against Amazon, saying the company may have violated safety requirements.

James previously called Smalls’ firing “disgraceful” and said her office was considering all legal options, while calling on the National Labor Relations Board to investigate.

Amazon has countered in its lawsuit by saying that it passed an unannounced city inspection of the Staten Island facility on March 30, the day of the protest. The warehouse’s temperature checks, signage to encourage social distancing, and shift staggering showed safety complaints were “completely baseless,” the lawsuit says the inspector found.

The online powerhouse also said that the demands by the attorney general’s office (OAG) were “far more stringent than the standard adopted by the OAG when defending, in other litigation, the New York State Courts’ reasonable but more limited safety response to Covid-19.”

Amazon said the OAG assessed violations regardless of documentation the company provided, such as photographs of Smalls not social distancing during work.

Issues with Amazon’s distribution centers have been a nationwide problem, well outside the New York area. In January, the Los Angeles Department of Public Health data revealed a surge in cases at Amazon facilities, totaling 245 across five warehouses located in L.A. County. The company’s El Monte warehouse fared the worst, with 85 cases, followed by South Gate (61), Hawthorne (52), Commerce (35) and Culver City (12).

The month prior, California attorney general Xavier Becerra filed a petition in the Sacramento County Superior Court requesting that Amazon be compelled to comply with outstanding investigative subpoenas regarding conditions at its facilities after multiple outbreaks across the country.

The Covid-related problems, and the ensuing response from Amazon, caused one exec to quit his position at the company in May last year. In a widely circulated blog post entitled, “Bye, Amazon,” then-vice president and engineer Tim Bray chided Amazon leadership for firing activists like Smalls instead of taking action to protect workers.

Amazon spent nearly $11.5 billion in Covid-related production and employee safety costs last year in the wake of many of the criticisms the company faced, both internally and externally. The company says that more than 700 employees are now tested every hour, and Amazon’s dedicated Covid-19 labs have processed more than 1 million tests globally. Amazon says it is working to ensure that its front-line employees receive vaccines as soon as possible.

Amazon faces largest unionization push

The company’s tussle with its frontline employees during the pandemic has resulted in one other burgeoning development. In Bessemer, Ala., employees at an Amazon warehouse have organized the biggest unionization push in the company’s history.

Ballots for mail-in voting to form a union started to be mailed to warehouse workers on Monday. Employees have until the end of March to cast their votes. A majority of the nearly 6,000 eligible employees have to vote “yes” in order to unionize.

In addition to waging online and offline pushes to combat the union effort, Amazon attempted to delay the vote by pressing for it to be held in-person, despite the pandemic, but the National Labor Relations Board rejected its arguments.

The potential ramifications could be significant, but a vote has to pass before any could occur. If organizers succeed in Bessemer, it could set off a chain reaction across Amazon’s operations nationwide, with thousands more workers rising up and demanding better working conditions.

Stuart Appelbaum, the president of the Retail, Wholesale and Department Store Union, says the union’s success in Bessemer is partly due to the pandemic, with workers feeling betrayed by employers that didn’t do enough to protect them from the virus.

Jennifer Bates, an employee-organizer at the Bessemer facility who has worked at Amazon since shortly after the warehouse opened last spring, reached out to the Retail, Wholesale, and Department Store Union last summer in the hope that it can represent them in their goal to mandate more breaks, prevent Amazon from firing workers for mundane reasons and push for higher pay.

The union push had garnered national attention and support from figures ranging from Senators Elizabeth Warren (D-Mass.) and Bernie Sanders (I-Vt.) to a group of 50 Congresspeople who sent a letter Friday urging Amazon’s outgoing CEO, Jeff Bezos, to “treat your employees as the critical asset they are, not as a threat to be neutralized or a cost to be minimized.”

The unionization has plenty going against it. For one, the vote is being held in Alabama, which is one of 27 right-to-work states where workers don’t have to join unions when hired. Only 8 percent of employed wage and salary workers in the state were members of unions in 2020, according to the Bureau of Labor Statistics (BLS). In comparison, California is 16.2 percent unionized, while New York is 22 percent unionized.

Then of course, there’s the fact that the workers are taking on the second-largest employer in the United States, which now has a total of 1.3 million employees due to its hiring push throughout the start of the pandemic, including a combined 200,000 hires in both September and October. Amazon has been successful in keeping unions within its operation from popping up. In fact, the last time Amazon workers voted on whether they wanted to unionize was in 2014, and it was a much smaller group: 30 employees at an Amazon warehouse in Delaware who turned it down.

However, a group of 70 of Amazon’s own investors, which control $20 billion in company shares, has told the tech titan to stop interfering with the union vote, the Financial Times reported earlier this week.