By Lauren Berg

Law360 (February 12, 2021, 8:15 PM EST ) New York Attorney General Letitia James does not have the authority to oversee Amazon's efforts to keep workers safe from the coronavirus nor can she demand that the company disgorge profits it has made during the pandemic, the retail giant said in a lawsuit filed Friday in Brooklyn federal court.

After James' attempt to regulate workplace safety at Amazon — which is facing a barrage of claims from workers that it didn't do enough to protect them at a Staten Island warehouse and fired a worker who raised the alarm — the online retailer hit back Friday, saying that's a job for the federal Occupational Safety and Health Administration.

Despite a barrage of claims that didn't do enough to protect workers at a Staten Island warehouse and fired a worker who raised the alarm, the online retailer hit back against the New York attorney general's efforts to regulate the company's workplace safety, saying that's a job for the federal Occupational Safety and Health Administration.

Since the beginning of the pandemic, Amazon said it has been ahead of the curve on worker safety, including expanding its paid and unpaid leave programs, as well as requiring social distancing and mask wearing, contact tracing, daily disinfection cleaning and daily temperature checks. The company said anyone who had a high temperature was required to go home and not come back until they were fever-free for three days.

Following an unannounced inspection of its Staten Island warehouse, Amazon said the New York City Sheriff's Office — which was charged with enforcing COVID-19 safety requirements — found the facility went "above and beyond" the current requirements.

"Amazon takes the health and safety of its employees extremely seriously and it has taken appropriate steps to enforce its health and safety protocols for the protection of its entire workforce," the company said in the complaint.

Amazon said it fired Christian Smalls — who has become one of the faces of the protest movement against the retailer after he claimed the company didn't provide personal protective equipment to its predominantly Black and Latino workers — because he repeatedly violated social distancing requirements and an order to quarantine.

The company said that just hours later, James and her office publicly condemned Smalls' termination and used it as an excuse to launch an investigation into Amazon's COVID-19 response. But instead of looking at the data showing Amazon's exceptional safety measures, James continued to claim the company violated health and safety standards, according to the complaint.

James then threatened to sue Amazon if it doesn't agree to a list of demands, including giving up profits, subsidizing public bus service, reducing its production speeds and retaining a health and safety consultant, as well as rehiring Smalls and paying him for "emotional distress."

But the federal Occupational Safety and Health Act preempts the attorney general's use of state law to regulate workplace safety, Amazon said, which the Brooklyn federal court has already held in the workers' lawsuit over Amazon's Staten Island warehouse. The workers are appealing the decision to the Second Circuit.

Amazon said it has invested about $10 billion on COVID-19-related initiatives to keep its workers safe and still deliver products to customers. It also already tried to provide subsidized bus service to the New York Metropolitan Transportation Authority, but the MTA declined the offer, according to the suit.

"Amazon cannot accept the OAG's attempt to subject Amazon to an inconsistent and unfair standard for workplace safety that is preempted by federal law and assigned to the primary jurisdiction of federal regulators — especially when the underlying facts show that Amazon has done an exemplary job responding to an unprecedented global pandemic," the company said.

Amazon is asking the court to stop the attorney general from continuing to try to oversee its workplace safety.

In response to the lawsuit, James said in a statement Friday that throughout the pandemic, Amazon employees have had to work in unsafe conditions, while the company and its CEO Jeff Bezos have made billions of dollars.

"This action by Amazon is nothing more than a sad attempt to distract from the facts and shirk accountability for its failures to protect hardworking employees from a deadly virus," James said.

"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," she added. "We remain undeterred in our efforts to protect workers from exploitation and will continue to review all of our legal options."

A representative for Amazon declined to comment beyond the complaint.

A group of community and labor organizations — including Make the Road New York; New York Communities for Change; ALIGN NY; the Retail, Wholesale and Department Store Union and Teamsters Joint Council 16 — on Friday called the lawsuit a "blatant attempt" by Amazon to avoid the consequences of its allegedly abusive workplace practices.

"Rather than take responsibility, Amazon continues to use bullying and intimidation to silence anyone who tries to rein in their exploitation and abuse," the groups said in a statement. "We will not allow it. Amazon must be held accountable for dangerous working conditions."

Amazon is represented by Zainab Ahmad, Mylan L. Denerstein, Jason C. Schwartz and Lucas C. Townsend of Gibson Dunn & Crutcher LLP.

Counsel information for the attorney general was not immediately available.

The case is Amazon.com Inc. v. Attorney General Letitia James, case number 1:21-cv-00767, in the U.S. District Court for the Eastern District of New York.

--Additional reporting by Dave Simpson, Braden Campbell and Danielle Nichole Smith. Editing by Michael Watanabe.

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