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Law360 (November 24, 2020, 5:48 PM EST ) Workers at Amazon's Staten Island warehouse are taking their suit, which seeks to make the e-commerce giant increase COVID-19 protections, to the Second Circuit with their appeal of an order tossing the case, according to a Tuesday filing.
The workers' notice of appeal came after U.S. District Judge Brian Cogan dismissed their suit without prejudice, finding that the Occupational Safety and Health Administration should be the one to decide if Amazon was sufficiently protecting workers at its JFK8 fulfillment center.
Judge Cogan said in his Nov. 1 order that courts aren't experts in public health or workplace safety and that the workers' claims and requested injunctive relief went "to the heart of OSHA's expertise and discretion." The judge also said that the courts were "particularly ill-suited to address this evolving situation and the risk of inconsistent rulings is high."
But the workers' counsel said in a statement Tuesday that the "civil justice system, and not an Occupational Safety and Health Administration that has been AWOL throughout this crisis, is the right place for these JFK8 workers and members of their households to pursue their claims."
"Our clients seek policies that encourage taking adequate time to sanitize workplaces, true contact tracing and clear communication from management about what Amazon workers should do if they're experiencing symptoms or believe they have been exposed," the attorneys said. "We are confident that the Second Circuit will reverse the district court's incorrect and dangerous decision."
The workers sued Amazon in June seeking a court order compelling stronger pandemic policies, including giving workers more time to wash their hands and sanitize their stations, providing more leave and paying them for time spent in quarantine.
Additionally, the suit asked the court to declare that the company's "failure to implement appropriate worker protections during the COVID-19 crisis" was a public nuisance that ran afoul of New York law. The workers filed an amended complaint in July.
The case is one of a handful of coronavirus-related workplace safety suits that turn on a public nuisance theory, which allows government intervention to address public safety threats. Judge Cogan also held in his November ruling that even if he didn't defer to OSHA, the workers' public nuisance and other claims would be dismissed.
Counsel for Amazon didn't respond Tuesday to a request for comment.
The workers are represented by Karla Gilbride and Stephanie Glaberson of Public Justice PC; Juno Turner, David Seligman and Valerie Collins of Towards Justice; Sienna Fontaine, Elizabeth Jordan and Frank Kearl of Make the Road New York; and Beth Terrell, Toby Marshall, Amanda Steiner, Ryan Tack-Hooper, Blythe Chandler and Erika Nusser of Terrell Marshall Law Group PLLC.
Amazon.com Inc. and Amazon.com Services LLC are represented by Jason Schwartz, Avi Weitzman, Zainab Ahmad and Karl Nelson of Gibson Dunn & Crutcher LLP.
The case is Palmer et al. v. Amazon.com Inc. et al., case number 20-cv-2468, in the U.S. District Court for the Eastern District of New York.
--Additional reporting by Braden Campbell and Vin Gurrieri. Editing by Leah Bennett.
For a reprint of this article, please contact reprints@law360.com.
