Update: Late Tuesday, New York Attorney General Letitia James sued Amazon, claiming that the company failed to protect warehouse workers at facilities in Queens and Staten Island during the COVID-19 pandemic, providing inadequate health and safety protections in those facilities. As reported below, Amazon sued James last week in an attempt to preempt charges such as these, and said in response to Tuesday’s suit that James’ claims didn’t represent an accurate picture of the company’s pandemic response.
In early March 2020, when little was still known about the new coronavirus, state and federal health authorities issued some broad guidance. Wash your hands frequently, avoid touching your face, keep a few feet of distance between yourself and others.
But at Amazon’s fulfillment center in Staten Island – an 855,000 square-foot warehouse site that employs more than 5,000 people – some workers allege that it was difficult or impossible to take those health precautions without fearing consequences. Derrick Palmer, a warehouse associate at the Staten Island facility – which is also known as JFK8 – told City & State this February that employees are afraid to take time away from scanning, picking and packing goods to wash their hands or clean their workstations. “I don’t want to lose my job for what they claim is ‘time off task,’” Palmer said, referring to the company’s “time off task” policy – one of the company’s productivity metrics – which tracks the time workers spend not actively scanning or packing items, for example, and can lead to discipline and even termination for workers spending too much time off task. Thirty minutes of “time off task” accrued throughout a single shift can result in a warning, and further infractions can eventually lead to termination, Palmer said.
Amazon’s health and safety protocols have come under close scrutiny during the pandemic, including from New York Attorney General Letitia James. After an employee at the Staten Island warehouse was fired at the end of March after he staged a walkout over conditions in the warehouse, James opened an investigation into Amazon’s labor practices. In a letter obtained by NPR last April, James’ office told Amazon they may have violated the state’s whistleblower law for firing the employee, and called the company’s safety protections “inadequate.” That was 10 months ago, and James’ office has declined to comment on the investigation since.
Now, Amazon is fighting back. Last Friday, the company sued James’ office, in an apparent attempt to preempt an effort by James to demand changes to the company’s warehouse practices. In the suit, Amazon says that James threatened to sue the company if it didn’t agree to implement a series of changes at its facilities, including reducing productivity requirements for workers. But Amazon argues that James’ office doesn’t have the legal authority to regulate workplace safety issues, saying that oversight for that rests under federal law.
James’ office brushed off the suit in a statement on Friday. “Let me be clear: We will not be intimidated by anyone, especially corporate bullies that put profits over the health and safety of working people,” James said.
The new lawsuit from Amazon is just the latest of the company’s efforts to defend against allegations of harsh and unsafe labor practices. Amazon has denied allegations such as the ones from Palmer that its productivity metrics make for an unsafe work environment. Amazon declined to elaborate on how its time off task policy works or how workers are disciplined under it, but said that employees at its fulfillment centers work 10-hour shifts four days per week, with two scheduled 30 minute breaks per shift, and are free to take short breaks to do things like use the bathroom or speak to their managers. In an emailed comment, spokesperson Jenna Hilzenrath said that at the onset of the pandemic, the company introduced changes to build in time for safety precautions. “As we continue to adapt to a new normal, we introduced updated associate performance expectations with support and coaching for those who need it along the way, and extra time built in so that associates can continue to practice social distancing, wash their hands and clean their work stations whenever needed,” she said.
Amazon has said in previous court filings – specifically in a lawsuit Palmer and other Staten Island workers filed in June over the issue – that it stopped imposing discipline for low productivity rates in March. But the employees suing Amazon claimed in court that this change wasn’t effectively communicated to them until months later, meaning they were still operating under the assumption that they could face discipline if they took too many breaks to wash their hands or waited a few minutes outside a break room for it to empty out so they could socially distance inside. In the sprawling warehouse, two trips to the bathroom can easily require 30 minutes, said Frank Kearl, an attorney with the progressive activism group Make the Road New York – one of the groups representing the employees in the suit.
The lawsuit argued that Amazon’s policies amounted to a “public nuisance” – essentially claiming that a lack of proper health and safety protocol put Amazon workers at risk of contracting COVID-19, and because those workers could then take the virus home or out into the community with them, those policies then put the larger public at heightened risk of contracting it. A federal judge dismissed that lawsuit in November, finding that the matter should be decided by the Occupational Safety and Health Administration – the federal workplace safety agency – and that the workers failed to demonstrate that Amazon’s policies created a “public nuisance.” But the plaintiffs have appealed to the Second Circuit.
In the meantime, Palmer said in an October court filing that the time off task policy and other performance tracking has been reinstated, and workers are again afraid to spend too much time away from their stations, despite the ongoing risk of contracting the virus. “People are scared, but at the same time, they’re like, ‘I don’t want to lose my job because Amazon is firing people for time off task,’” Palmer told City & State. “I feel like (Amazon has) pushed safety to the backburner and are focusing on productivity.”
In a court filing this week, Amazon argued that the claim that its productivity metrics make for an unsafe work environment are moot, in part because time spent on tasks including washing hands, social distancing and using the bathroom are no longer counted in the feedback employees receive on their “time off task.”
A spokesperson did not respond directly when asked whether Amazon had fired any warehouse employees during the pandemic because of violations of the time off task policy. “We would never dismiss an employee without first ensuring that they had received our fullest support, including understanding any barriers and providing dedicated coaching to help them improve and additional training,” Hilzenrath wrote over email, noting that the company has an interest in retaining employees.
Hilzenrath said that low productivity rates are met with extra training. “Associate performance expectations are measured and evaluated over a long period of time as we know that a variety of things could impact the ability to meet expectations in any given day or hour,” Hilzenrath wrote over email. “We support people who are not performing to the levels expected with dedicated coaching to help them improve.”
Since the onset of the pandemic, complaints about the treatment of warehouse workers have been raised by Amazon employees on Staten Island, and across the country. Some workers have taken to protesting over what they say are unsafe working conditions and an alleged lack of transparency about the spread of COVID-19 in warehouses. A March 30 protest in front of the Staten Island warehouse in Bloomfield on Staten Island’s West Shore organized by Palmer and Christian Smalls, a former assistant manager at the facility, led to Smalls’ firing. Amazon said that Smalls had violated quarantine instructions by showing up at the facility to stage a walkout on March 30 after he had been told to stay home from work – with pay – because he came into close contact with another employee who tested positive for COVID-19. Amazon said they had given Smalls multiple warnings for previously violating social distancing guidelines, but in his own lawsuit against the company, Smalls said they never did.
In addition to the investigation James opened last spring into Smalls’ firing, New York City’s Commission on Human Rights also opened an investigation. A spokesperson for the commission declined to comment, saying the matter was still open.
In the lawsuit Amazon filed against James on Friday, the company said that James had threatened to sue the company if it did not agree to reinstate Smalls, as well as reduce productivity metrics for its warehouse employees.
In that suit, Amazon pointed to an unannounced inspection for COVID-19 safety at the Staten Island facility by the New York City Sheriff’s Office on March 30, in which the Sheriff’s Office said the facility “appeared to go above and beyond the current compliance requirements.” “Nothing is more important than the health and safety of our employees, and we’re doing everything we can to support them through the pandemic,” Hilzenrath said in an emailed statement. “In 2020, we invested more than $11.5 billion on COVID related initiatives to keep our employees safe and deliver for customers. This includes more than $961M invested in personal protective equipment and safety measures, such as mandating masks, temperature screening, installing plexi-shields, additional cleaning teams and providing voluntary COVID-19 testing onsite.” Hilzenrath said that at the beginning of the pandemic, the company implemented changes including social distancing measures and enhanced cleaning efforts at every site.
Videos and commercials for Amazon show the company thanking its “retail heroes” and citing the millions of masks and other PPE the company has provided to workers. “I feel more protected when I’m in this building than one I’m out in the general public,” one employee says in a video.
While the pandemic has meant disaster for many small businesses, Amazon is one of the giants whose business has boomed amid stay-at-home orders, with its shares up more than 60% over the last year and its net sales increasing 38% in 2020. To serve that growing demand, Amazon has gone on a global hiring spree, adding nearly half a million employees between last January and October, The New York Times reports. In New York, the company continues to grow its physical footprint too. A spokesperson for the company said that the state is currently home to two fulfillment centers, two sortation centers and 15 delivery stations, employing more than 44,000 in New York. Those jobs pay a minimum of $15 per hour statewide, and come with health and retirement benefits. While the company wouldn't comment on future construction plans, it seems to be expanding every day, with two new facilities planned in East New York, Brooklyn, one in Erie County and another in the Bronx. (A map created by the good government organization Good Jobs First shows how sprawling the company’s current footprint is.)
Just over two years ago, Amazon pulled out of plans to build a second headquarters in Long Island City, Queens – a project the company said would bring 25,000-plus jobs to the city, many of them high-paying. The demise of HQ2, as the project was nicknamed, was brought on by a groundswell of pushback from progressive politicians and labor leaders, although some unions welcomed the company. Amazon was offered roughly $3 billion in tax breaks to locate in Queens, which spurred the backlash, as did the harsh conditions for warehouse workers and the company’s anti-union stance.
Good Jobs First tracks the state and local subsidies that Amazon receives for building across the country, and reports that the company has received at least $3.7 billion in various public incentives over the years, with data going back to 2000. Despite the uproar over the tax breaks offered by New York City and state to lure HQ2, Amazon hasn’t stopped seeking or receiving incentives in New York. A developer of an Amazon distribution center in Suffolk County recently won $2.3 million from the county’s industrial development agency. A more than one million square foot warehouse being built in Montgomery was awarded $20.5 million in tax breaks – through a payment in lieu of taxes agreement – by the local industrial development agency. Not all Amazon facilities in New York have been accompanied by these deal sweeteners, but the company continues to seek tax breaks as it builds.
Some public officials argue that tax breaks are a small price to pay for a company such as Amazon to bring jobs and economic activity to towns and small cities across New York. Officials are considering tax breaks for an Amazon facility in Hamburg, Erie County, and some pushing for subsidies make exactly this argument. "In order to realize tax revenue and employment possibilities for our citizens, if we don't have some type of tax incentive program here, some pilot program, there is no realistic chance that we will be able to land large industrial concerns at any time in the future,” Hamburg Town Supervisor Jim Shaw told WGRZ earlier this month.
As the company expands in New York – including not just warehouses but also some corporate offices in Manhattan – the same criticisms prompted by the debate over HQ2 persist. “The issue is that these billionaires and these corporations are buying up property and setting up shop and warehouses and sortation centers all over the country, and they’re not giving back to our communities,” said Chris Smalls, the Staten Island warehouse employee who was fired, and who now runs an advocacy group called The Congress of Essential Workers, which continues to criticize Amazon’s labor practices. “It’s one thing to have a job, but it’s another thing to have a job with protections.”
Critics argue that in order to fulfill Amazon’s promises of one and two-day delivery windows, they need to build new warehouses anyway and shouldn’t receive tax breaks to do so. Labor advocates and progressive lawmakers say that employees who support unionizing should be able to do so without aggressive anti-union pressure from the company – something currently on display as workers at an Amazon warehouse in Alabama vote on whether to unionize. “We need to do a lot of things to get this under control, and helping workers organize is one of them, (and) keeping from giving them public dollars to do what they’re going to do anyway is another,” said Queens state Sen. Michael Gianaris – one of the most outspoken opponents of HQ2.
Last year, Grand Island, a small town on the Canadian border in Western New York, grappled with these questions, serving as a kind of microcosm of the HQ2 fight. As part of a secretive project codenamed “Project Olive,” Amazon planned to build a massive distribution center on the island, creating 1,000 jobs. Those plans were scrapped this summer, as the project faced opposition from local residents, including an advocacy group called the Coalition for Responsible Economic Development for Grand Island. That coalition opposed the project for reasons including that it would create heavy traffic, polluting the air and the Niagara River. The activists argued that the warehouse jobs Amazon offered wouldn’t be worth those social costs, in part because they wouldn’t be high-paying and those jobs have been associated with high injury rates. Cathy Rayhill, a Grand Island resident and spokesperson for the coalition, said she thought the Grand Island plans were scrapped because Amazon didn’t want to deal with the backlash. “They just didn't want negative publicity,” Rayhill said. “They didn't want to be tied up in the courts.”
Now, Rayhill said, the developer who owns that land is proposing a new warehouse complex on that same site, and she believes Amazon will be the eventual tenant, even though the developer has not named any tenants yet. “Amazon has to be in the top 50 metropolitan areas to deliver on their quote, ‘Amazon Prime promise.’ And Buffalo is in the top 50,” Rayhill said. “So they will find a way, come hell or high water, to get these warehouses built and operational.”
A spokesperson for Amazon did not comment on the Grand Island development or whether it would occupy a future development there, saying the company doesn’t comment on its future roadmap. Erie County Executive Mark Poloncarz – a Democrat who supported the original Grand Island development – said he has also heard that the idea behind the new development may be for Amazon to eventually occupy it, but he has not had discussions with Amazon.
In the meantime, Amazon may soon be settling into another, much smaller site in Erie County. Shaw and other officials in Hamburg are currently at odds over whether the behemoth company should receive roughly $6 million in proposed tax breaks from the town’s industrial development agency to build a warehouse in the town. Poloncarz is one of a few elected officials representing the area who says that while he supports Amazon coming to the area, they shouldn’t get public incentives to do so. “We know they’re going to build the facility anyway because they need to, for their rapidly expanding business model,” Poloncarz said. “I’m not adverse to Amazon’s growth, I just don’t think that this type of project is one that should be receiving tax breaks.”
Erie County already is home to two Amazon facilities, neither of which were built with tax breaks, Poloncarz said. The county executive also said that he has not heard any complaints from warehouse employees about health or safety issues during the pandemic, though he said that doesn’t mean concerns hadn’t been raised in other parts of the state.
Smalls and Palmer, who both registered complaints about the conditions in the Staten Island facility during the pandemic, say they want Amazon to do more to protect its workers. Smalls said he used to take pride in his work as a supervisor, bringing his five years of experience with the company to the floor every day. Though Smalls acknowledged the work has always been tough, even before the pandemic. “I (used to) tell every new hire, ‘If you have a gym membership, you might want to cancel it,’” Smalls recalled. “You’re going to be on your feet for 10 hour days.”
Last week, Smalls was headed down to Bessemer, Alabama, where employees at a warehouse are voting on whether to unionize. If they succeed, they’d be the first of the company’s employees to unionize in the country. (Amazon spokesperson Rachael Lighty said in an emailed statement that the company already provides what workers are asking for, including competitive pay and benefits.)
Though the effort in Alabama faces steep opposition from the company, Smalls hopes that worker organizing will spread across the country. “That's my plan, to bring it back up here to New York, and try to organize even my former facility,” he said.
Palmer, who still works at the Staten Island facility, said that he received a “final write-up” for violating social distancing policy while participating in the March 30 protest with Smalls – a warning that Kearl, the Make the Road New York attorney, said serves as a kind of last warning before firing. Amazon said that Palmer was provided with feedback about violating social distancing on three other occasions, though Palmer said he didn’t get any other warnings, despite the final write-up typically following a first, second and third warning. He said he wasn’t told about a social distancing policy, though the company said that guidelines were implemented in early March. Amazon did not confirm whether a final write-up is associated with impending termination, but said that the process varies depending on the situation.
Like Smalls, Palmer said he feels he was disciplined for speaking out. “It just speaks a lot about this company, especially when they have commercials saying how safe they are,” Palmer said. “Their actions contradict the message that they’re trying to get out to the public.”
Despite receiving that final write-up, Palmer said he hasn’t felt under as much threat of retaliation since hooking up with Kearl and filing the lawsuit. While their appeal in that case continues – and the attorney general apparently continues to scrutinize the company – Palmer is in no rush to stop calling for change at Amazon. “Amazon needs to do better,” Palmer said. “All we wanted to do was just get the building safe and get all the associates safe.”
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