Punching In: Amazon, NY to Duke It Out Over Labor, Covid Case

Betty Q. Hixson

Monday morning musings for workplace watchers.

Amazon Face-off | Teachers Want OT

Bruce Rolfsen: Amazon.com Inc. and the New York Attorney General’s Office face off Tuesday in a Manhattan federal courthouse, the latest arena for their 16-month legal fight over labor rights and protecting workers from Covid-19.

At issue is whether federal enforcement of Occupational Safety and Health Administration and National Labor Relations Board rules and laws supersedes New York Attorney General Letitia James’ efforts to regulate conditions at two Amazon distribution centers in New York City.

Amazon’s lawsuit challenging the state is set for oral arguments before the US Court of Appeals for the Second Circuit.

The online retailer sought the appeals court’s review after federal District Judge Brian Cogan of the Eastern District of New York on Aug. 11 ruled that Amazon’s claim of federal regulations preempting New York efforts should be decided by a state court.

Rather than make its preemption argument in state court, Amazon on Aug. 17 appealed to the Second Circuit. Amazon is asking the appeals court to reverse Cogan’s decision and instruct the judge to reconsider the company’s claims for relief.

“The issues before the district court were purely issues of federal law, and it is entirely necessary and appropriate for federal courts to decide those issues. Federal courts cannot decline the task out of a misguided sense of comity,” Amazon’s attorney, Jason Schwartz of Gibson, Dunn & Crutcher LLP in Washington, told the court in a written brief.

The attorney general wants the Second Circuit to uphold Cogan’s decision to let a state court sort out whether state regulations have priority.

“Amazon has ample opportunity in the state courts to raise all of its federal preemption claims, as well as all of its state-law defenses, and to obtain the identical injunctive and declaratory relief that it seeks in this federal action,” Assistant Solicitor General Linda Fang in New York City, wrote the court.

Schwartz told Bloomberg Law he couldn’t talk about the hearing. The attorney general’s office didn’t respond to a request to discuss the case.

The real world has changed while the opposing sides have been filing documents for nine months.

In March, workers at one of the Amazon work sites involved in the lawsuit, JFK8, a Staten Island fulfillment center, voted to be represented by a union led by Christian Smalls. His dismissal by Amazon in March 2020 helped spark the attorney general’s enforcement efforts.

A state appeals court on May 10 ruled against the attorney general in a parallel case where James sought to enforce state public health and labor laws against Amazon.

The Supreme Court of New York, Appellate Division, First Department in Manhattan dismissed the attorney general’s request for a permanent injunction that would require Amazon to follow state Covid-19 workplace safety guidelines. The request was moot because New York health officials had withdrawn the guidance, the court said.

The court also found that the National Labor Relations Board was the forum, not state courts, to decide if Amazon had violated workers’ rights to “concerted activities” protesting allegedly unsafe conditions.


Amazon Covid-19 Lawsuit Spotlights State Regulatory Power

Amazon Wins Dismissal of N.Y. Suit Over Workplace Conditions

Amazon Accused of Under-Reporting Covid Cases Contracted at Work

Amazon’s Covid-19 Worker Safety Battle With New York Escalates

A man monitors the addressing process at the 855,000-square-foot Amazon fulfillment center in Staten Island.


Rebecca Rainey: The nation’s largest teachers union wants the US Labor Department to drop an exemption barring school teachers from overtime pay as part of the Biden administration’s forthcoming update to federal overtime regulations.

The National Education Association in a letter to Labor Secretary Marty Walsh is urging the DOL to rescind language in its overtime regulations that says teachers aren’t owed time-and-a-half pay when they work more than 40 hours a week, regardless of how much they’re paid.

The DOL has been hosting meetings since March on a proposed rule to revise its overtime regulations, an update that’s expected to expand overtime protections to more workers.

“This change should be included in the upcoming rulemaking, either as part of the forthcoming proposed rule, or at the very least, as a request for information to begin the process of considering this crucial regulatory change,” teachers said in the May 25 letter. It was signed by dozens of organizations in addition to the NEA.

Under the Fair Labor Standards Act, workers are exempt from time-and-a-half pay if they’re salaried, make more than a certain amount per year, and work in a “bona fide executive, administrative, or professional capacity.”

Typically, workers must satisfy all three of those requirements to be excluded from the protections. But DOL’s current regulations explicitly exempt teachers from receiving overtime regardless of how much they make or if they’re paid hourly, an exclusion that also applies to lawyers and doctors.

The NEA, which represents 3 million education workers, argues that the provision excluding teachers from overtime requirements has suppressed educator wages and exacerbated the teacher shortage. The Economic Policy Institute estimates that eliminating the provision would affect 1.5 million teachers, nearly a quarter of the teachers in the US.

“Whatever rationale may have existed in 1967 to categorically deny teachers these FLSA protections without regard to salary, lumping teachers in with highly compensated lawyers and doctors while excluding them from the same FLSA protections that apply to all other professionals, is nonsensical,” the letter said.

DOL said it’s reviewing the NEA letter.

“Teachers are essential to our well-being, to our economy, and to our future, and they deserve good jobs,” a DOL spokesperson said in a statement.

We’re punching out. Daily Labor Report subscribers, please check in for updates during the week, and feel free to reach out to us.


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