Palmer v. Amazon.com, Inc.
| Docket Number | 20-3989-cv,August Term, 2020 |
| Decision Date | 18 October 2022 |
| Citation | 51 F.4th 491 |
| Parties | Derrick PALMER, Kendia Mesidor, Benita Rouse, Alexander Rouse, Barbara Chandler, Luis Pellot-Chandler, Deasahni Bernard, Plaintiffs-Appellants, v. AMAZON.COM, INC., Amazon.com Services, LLC, Defendants-Appellees. |
| Court | U.S. Court of Appeals — Second Circuit |
Karla Gilbride, PUBLIC JUSTICE, Washington, DC (Emily Villano, Public Justice, Washington, DC, Juno Turner, David H. Seligman, and Valerie Collins, Towards Justice, Denver, CO, Beth Terrell, Terrell Marshall Law Group PLLC, Seattle, WA, on the brief), for Plaintiffs-Appellants.
Jason C. Schwartz, Gibson, Dunn & Crutcher LLP, Washington, DC (Lucas C. Townsend, Lochlan F. Shelfer, Gibson, Dunn & Crutcher LLP, Washington, DC, Avi Weitzman, Zainab N. Ahmad, Gibson, Dunn & Crutcher LLP, New York, NY, on the brief), for Defendants-Appellees.
Before: Jacobs, Chin, and Nardini, Circuit Judges.
Workers at Amazon's JFK8 fulfillment center and members of their households (together, "Plaintiffs") challenge workplace COVID-19 policies, practices, and procedures at JFK8. Their suit against Amazon.com, Inc. and Amazon.com Services LLC (together, "Amazon") in the United States District Court for the Eastern District of New York (Brian M. Cogan, Judge ) asserts causes of action under New York law for public nuisance, breach of the duty to protect the health and safety of employees under New York Labor Law ("NYLL") § 200, violation of NYLL § 191 for failure to pay, on time and in full, COVID-19 sick leave under New York's COVID-19 sick leave law, and injunctive relief against future violations of NYLL § 191. Amazon moved to dismiss Plaintiffs’ amended complaint. In a memorandum decision and order filed on November 2, 2020, the district court granted Amazon's motion. On November 3, 2020, the district court entered judgment dismissing Plaintiffs’ amended complaint.
The district court dismissed Plaintiffs’ public nuisance and NYLL § 200 claims without prejudice under the primary jurisdiction doctrine, concluding that the questions before the court turned on factual issues requiring the technical and policy expertise of the Occupational Safety and Health Administration ("OSHA"). In the alternative, the district court concluded that Plaintiffs failed to allege the special injury required to state a claim for public nuisance; that New York's Workers’ Compensation Law preempts suit under NYLL § 200 for injunctive relief for past harm; and that Plaintiffs failed to allege a cognizable injury under NYLL § 200 based on the threat of future harm. The district court then dismissed with prejudice Plaintiffs’ NYLL § 191 claims, concluding that COVID-19 leave payments are not "wages" as defined by § 191.
Plaintiffs now appeal the district court's dismissal. This appeal presents five key questions: (1) whether Plaintiffs’ public nuisance and NYLL § 200 claims are moot because they are premised on New York Forward, a state-issued plan with industry-specific guidance for businesses that has since been rescinded; (2) whether the district court correctly applied the primary jurisdiction doctrine in dismissing Plaintiffs’ state law claims in deference to OSHA; (3) whether Plaintiffs plausibly plead a special injury to support a public nuisance claim against Amazon; (4) whether the New York Workers’ Compensation Law bars claims for injunctive relief under NYLL § 200 ; and (5) whether NYLL § 191 establishes how and when COVID-19 sick leave pay must be paid.
First, we hold that Plaintiffs’ public nuisance and NYLL § 200 claims are not moot. These claims continue to present a live controversy because they are not based solely on since-rescinded guidance associated with the New York Forward plan. Second, we hold that the doctrine of primary jurisdiction does not apply to Plaintiffs’ public nuisance and NYLL § 200 claims. The issues before us—whether Amazon created a public nuisance and whether Amazon has breached its duty owed to Plaintiffs under NYLL § 200—turn on questions of state tort law that are within the conventional experience of judges. Although it is certainly within OSHA's competence to evaluate and create workplace health and safety standards, OSHA's expertise would not be a material aid here; the issues before us are of a legal, not factual, nature and do not require the kind of highly factual inquiry that would typically be aided by OSHA's expertise. Furthermore, OSHA has not promulgated the kind of cross-industry COVID-19 workplace safety standards that might be applicable here. Third, we hold that although Plaintiffs may plead a harm that is different in degree from the community at large, they fail to plead a harm that is different in kind , thereby failing to allege the special injury required to state a claim for public nuisance under New York law. Fourth, we hold that New York's Workers’ Compensation Law is concerned only with claims for monetary relief and leaves open claims against employers for injunctive relief under NYLL § 200. Lastly, we hold that NYLL § 191 determines the pay frequency for "wages" but not "benefits or supplemental wages." Because COVID-19 leave payments are not "wages" as defined by NYLL § 191, Plaintiffs do not have a private cause of action under § 191 for Amazon's alleged failure to comply with New York's COVID-19 sick leave law.
Accordingly, we AFFIRM the district court's dismissal of Plaintiffs’ public nuisance claim and NYLL § 191 claims for damages and injunctive relief; and we VACATE the district court's dismissal of Plaintiffs’ NYLL § 200 claim seeking a declaratory judgment and injunctive relief and REMAND to the district court for further proceedings on this claim.
We assume the following facts, which are taken from Plaintiffs’ amended complaint, to be true for the purposes of this appeal. Kolbasyuk v. Cap. Mgmt. Servs., LP , 918 F.3d 236, 238 n.1, 239 (2d Cir. 2019).
The JFK8 fulfillment center ("JFK8") is a facility operated by Amazon in Staten Island, New York. JFK8 covers approximately 840,000 square feet and runs twenty-four hours per day, seven days per week. On average, JFK8 employs 3,500 workers at any given time. During peak seasons—the period around Amazon Prime Day in July and the months leading up to Christmas—the workforce expands to approximately 5,000. During the course of the pandemic, Amazon's national workforce expanded. As of April 2020, Amazon had hired 175,000 more workers to account for increased demand for online shopping and product delivery.
Amazon tracks its employees’ activity through devices workers use to scan items and packages. It uses this information to determine whether employees are on task and to calculate an employee's total time off task ("TOT") for each shift. An employee's TOT in a shift is not to exceed thirty minutes. TOT greater than thirty minutes results in a written warning; TOT greater than sixty minutes results in a final written warning; and TOT greater than 120 minutes results in an automatic termination. Employees accumulate TOT during bathroom breaks. An employee's supervisor must re-code certain TOT activities to prevent them from contributing to an employee's total TOT. Supervisors cannot re-code TOT for bathroom breaks, but they can decide whether to discipline an employee for exceeding TOT limits because of those breaks.
On March 1, 2020, New York announced its first confirmed case of COVID-19. On March 20, 2020, then-New York Governor Andrew Cuomo issued the New York State on PAUSE Executive Order. Exec. Order No. 202.6 (N.Y. Mar. 22, 2020). The Order permitted essential businesses—those providing products or services required to maintain the health, safety, and welfare of New Yorkers—to remain open. Amazon was deemed an essential business.
In May 2020, New York began a phased reopening of non-essential businesses under the New York Forward plan. The plan provided detailed, industry-specific guidance for essential businesses and non-essential businesses that were permitted to reopen. The guidance outlined "minimum requirements" businesses needed to follow to remain open. JFK8 was subject to the New York Forward Interim Guidance for the Wholesale Trade Sector.
In parallel to the Governor's executive action, on March 18, 2020, the New York legislature responded to the pandemic by enacting a COVID-19 sick leave law (the "Leave Law"). See 2020 N.Y. Sess. Laws ch. 25 (McKinney). The Leave Law requires employers to pay sick leave to employees who are "subject to a mandatory or precautionary order of quarantine or isolation issued by the state of New York, the department of health, local board of health, or any governmental entity duly authorized to issue such order to COVID-19." Id. § 1.1(a). The amount of sick leave an employer must provide varies based on its number of employees. Employers with a workforce of one hundred or more must give at least fourteen days of paid sick leave during any mandatory or precautionary order of quarantine or isolation. Id. § 1.1(c).
Plaintiffs are warehouse workers at JFK8 and members of the employees’ households. The employee plaintiffs are Derrick Palmer, Benita Rouse, Barbara Chandler, and Deasahni Bernard. Their roles all involve working close to other team members, and most of their roles include touching items that other workers have handled. The remaining plaintiffs (together, the "Non-Employee Plaintiffs") live in the households of the employee plaintiffs: Kendia Mesidor is in a relationship with Derrick Palmer, and Alexander Rouse and Luis Pellot-Chandler are the children of Benita Rouse and Barbara Chandler, respectively. Chandler and Bernard contracted COVID-19 while employed at JFK8. Members of Chandler's household experienced symptoms of COVID-19,...
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