throbber
Case 1:20-cv-02468-BMC Document 73 Filed 11/02/20 Page 1 of 24 PageID #: 1884
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`UNITED STATES DISTRICT COURT
`EASTERN DISTRICT OF NEW YORK
`----------------------------------------------------------- X
`DERRICK PALMER, KENDIA MESIDOR,
`:
`BENITA ROUSE, ALEXANDER ROUSE,
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`BARBARA CHANDLER, LUIS PELLOT-
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`CHANDLER, and DEASAHNI BERNARD,
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`:
`
`:
` Plaintiffs,
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`- against -
`:
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`AMAZON.COM, INC. and AMAZON.COM
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`SERVICES LLC,
`:
`
`:
` Defendants.
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`
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`:
`----------------------------------------------------------- X
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`
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`
`
`MEMORANDUM DECISION
`AND ORDER
`
`20-cv-2468 (BMC)
`
`
`
`
`COGAN, District Judge.
`
`
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`Plaintiffs challenge defendants’ compliance with state and federal public health guidance
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`and law during the COVID-19 pandemic. The amended complaint asserts claims for (i) public
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`nuisance, (ii) breach of the duty to provide a safe workplace, (iii) failure to timely pay COVID-
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`19 leave, and (iv) an injunction against future failure to timely pay COVID-19 leave.
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`Before me is defendants’ motion to dismiss the amended complaint. It is granted without
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`prejudice as to plaintiffs’ claims for public nuisance and breach of the duty to provide a safe
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`workplace, pursuant to the doctrine of primary jurisdiction, and with prejudice as to plaintiffs’
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`claims for failure to timely pay COVID-19 leave.
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`BACKGROUND1
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`A.
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`The Parties
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`Defendants Amazon.com, Inc. and Amazon.com Services LLC (together, “Amazon”)
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`operate a facility, the JFK8 fulfillment center, located on Staten Island. JFK8 runs twenty-four
`
`
`1 Unless otherwise noted, the below facts are taken from plaintiffs’ complaint and assumed to be true for purposes of
`this motion. See Kolbasyuk v. Capital Mgmt. Servs., LP, 918 F.3d 236, 239 (2d Cir. 2019).
`
`

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`Case 1:20-cv-02468-BMC Document 73 Filed 11/02/20 Page 2 of 24 PageID #: 1885
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`hours a day, seven days a week, and is larger than fourteen football fields. The facility employs
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`thousands of workers.
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`
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`Plaintiffs are employees working at JFK8 and people who live with those employees.
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`Derrick Palmer works as a Warehouse Associate, Process Guide and Picking Master at JFK8.
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`As a Picking Master, he picks customer orders, repeatedly touching items that have been touched
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`by other workers. His role as a Process Guide requires close interaction with other associates.
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`Kendia Mesidor lives with Mr. Palmer and faces a heightened risk of infection or complications
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`from COVID-19.
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`
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`Benita Rouse works as a Problem Solver at JFK8. In this role, she assesses whether
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`damaged items can be re-sold, requiring her to touch items that have been handled by other
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`workers, and requiring close interaction with other workers and the use of the same equipment.
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`Alexander Rouse is Ms. Rouse’s child and lives with her.
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`
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`Barbara Chandler works as a Process Assistant at JFK8. In this role, she helps manage,
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`supervise, and coach a team of about fifty people and has to interact closely with other workers.
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`Ms. Chandler tested positive for COVID-19 in March 2020 and several members of her
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`household also experienced symptoms, including her cousin, who died in April 2020. Luis
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`Pellot-Chandler is Ms. Chandler’s child and lives with her. He also experienced symptoms of
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`COVID-19. Ms. Chandler claims that she was not timely or fully compensated for her COVID-
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`19 sick leave.
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`
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`Deasahni Bernard is a member of the robotics team at JFK8. Ms. Bernard claims that she
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`was not timely and fully paid for her COVID-19 sick leave.
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`
`
`2
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`

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`Case 1:20-cv-02468-BMC Document 73 Filed 11/02/20 Page 3 of 24 PageID #: 1886
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`B.
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`COVID-19 and Workplace Guidance
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`The novel coronavirus, SARS-CoV-2, and its associated disease, COVID-19, is
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`potentially lethal, has no known cure, no particularly effective treatment, and no vaccine. So far
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`this year, it has infected over 512,000 people and killed over 33,000 people in New York State
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`alone.2
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`COVID-19 can spread through contact, respiratory droplets, and aerosols.3 To slow the
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`spread of COVID-19, the Centers for Disease Control and Prevention (“CDC”) recommends
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`frequent hand washing and disinfection of surfaces, mask wearing, and social distancing by
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`keeping six feet away from other people and limiting contact with others outside one’s
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`household, whether indoors or outdoors.4
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`
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`The State of New York has issued industry-specific guidance for businesses operating
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`during the COVID-19 pandemic known as the “New York Forward” plan. The guidance for the
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`Wholesale Trade Sector directs businesses to: operate at reduced capacity unless more workers
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`are needed to continue safe operations; implement policies to minimize touching of shared
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`surfaces; increase sanitization of workstations and shared surfaces and equipment; provide hand
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`washing stations and supplies; stagger shifts and tasks to minimize congestion; conduct regular
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`cleaning; allocate time during shifts for cleaning if workers are to clean their own stations;
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`conduct health screenings of all people entering the facility and keep a log of responses; provide
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`
`2 New York Covid Map and Case Count, N.Y. TIMES (updated Oct. 31, 2020),
`https://www.nytimes.com/interactive/2020/us/new-york-coronavirus-cases.html.
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`3 Scientific Brief: SARS-CoV-2 and Potential Airborne Transmission, CTRS. DISEASE CONTROL & PREVENTION
`(updated Oct. 5, 2020), https://www.cdc.gov/coronavirus/2019-ncov/more/scientific-brief-sars-cov-2.html.
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`4 How to Protect Yourself & Others, CTRS. DISEASE CONTROL & PREVENTION (updated Sept. 11, 2020),
`https://www.cdc.gov/coronavirus/2019-ncov/prevent-getting-sick/prevention.html.
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`
`
`3
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`

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`Case 1:20-cv-02468-BMC Document 73 Filed 11/02/20 Page 4 of 24 PageID #: 1887
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`information to local authorities to assist in contact tracing; and develop a communications plan to
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`provide employees, visitors, and customers with information.5
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`
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`New York further instituted a new law requiring large employers like Amazon to provide,
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`with certain limitations, at least fourteen days of paid sick leave to employees subject to a
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`mandatory or precautionary order of quarantine or isolation due to COVID-19.
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`
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`The CDC also published guidance for employers and employees operating during the
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`pandemic. Those guidelines recommend, among other things, that employers develop flexible
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`leave policies, approve sick leave without requiring a positive test or doctor’s note, reduce face-
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`to-face contact between employees, take steps to reduce transmission at the workplace, establish
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`policies to identify workers who may have been exposed to COVID-19 and aid in contact
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`tracing, encourage hand washing and social distancing, and increase ventilation and sanitization.
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`C.
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`
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`The Amended Complaint
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`Plaintiffs filed this action and a motion for a preliminary injunction. They subsequently
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`withdrew their motion for a preliminary injunction and filed an amended complaint. This case is
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`before me on Amazon’s motion to dismiss the amended complaint.
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`The amended complaint asserts claims for (i) public nuisance and (ii) breach of the duty
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`to protect the health and safety of employees under New York Labor Law (“NYLL”) § 200,
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`seeking a declaratory judgment under 28 U.S.C. § 2201 for both of these causes of action, as
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`well as claims for (iii) failure to timely pay earned wages under NYLL § 191, and (iv) an
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`injunction against future NYLL § 191 violations. Plaintiffs seek injunctive relief for their first,
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`second, and fourth causes of action, and damages for their third cause of action.
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`5 I assume for purposes of this motion that the Wholesale Trade Sector guidance as described by plaintiffs applies to
`Amazon’s JFK8 facility.
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`
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`4
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`

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`Case 1:20-cv-02468-BMC Document 73 Filed 11/02/20 Page 5 of 24 PageID #: 1888
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`Plaintiffs claim that Amazon’s operations at JFK8 fail to comply with applicable
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`workplace guidance. They first argue that Amazon’s productivity requirements prevent
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`employees from engaging in basic hygiene, sanitization, and social distancing. Amazon tracks
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`employees in real time to determine whether they perform a task in each minute and aggregates a
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`total time off task (“TOT”) every day. Employees are warned and penalized, including
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`potentially with termination, if their TOT exceeds certain amounts. TOT is automatically
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`counted even during paid rest breaks, including bathroom breaks, and requires supervisors to re-
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`code certain TOT activities to prevent them from being counted against the employee. Plaintiffs
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`claim that employees’ fear of accumulating TOT causes them to skip hand washing and
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`sanitizing their workstations, and rush through the facility in a way that prevents social
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`distancing. Amazon officially suspended rate requirements in March 2020, but plaintiffs claim
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`that the change was not effectively communicated to employees until July, there is still confusion
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`over the policy, and the productivity requirements could be reinstated at any time.6
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`Plaintiffs also claim that only two of the breakrooms at JFK8 are air conditioned, causing
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`workers to cluster in those areas on hot days, further impeding social distancing.
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`Amazon conducts contact tracing for COVID-19 infections among its employees, but
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`plaintiffs claim that it fails to do so adequately. They allege that Amazon uses surveillance to
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`track potentially infected employees’ movements but does not interview infected workers to
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`discuss their contacts and discourages those workers from informing others that they may be at
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`risk. In addition, workers who have had contact with infected workers were not asked whether
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`they have any symptoms before Amazon authorized them to return to work.
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`6 In a filing dated October 16, 2020, Amazon admitted that it has resumed productivity feedback for some
`employees.
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`
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`5
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`Case 1:20-cv-02468-BMC Document 73 Filed 11/02/20 Page 6 of 24 PageID #: 1889
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`Plaintiffs also take issue with Amazon’s application of New York’s COVID-19 leave
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`law, claiming that Amazon has failed to clearly communicate to its employees the availability of
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`leave related to COVID-19 and failed to promptly pay workers the required leave. They argue
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`that Amazon’s existing leave policies are inadequate to encourage workers to take time away
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`from work if they are experiencing symptoms of COVID-19 or have been exposed to it.
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`Amazon’s unpaid leave accrues slowly, is deducted when employees are late to work, and the
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`loss of adequate leave to cover such lateness can lead to termination. Because Amazon’s Paid
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`Time Off (“PTO”) leave accrues slowly, it is functionally unavailable to new workers. Plaintiffs
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`further claim that Amazon fails to adequately communicate information about the availability of
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`leave and fails to promptly approve leave.
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`Plaintiffs argue that Amazon fails to pay employees for the full amount of the leave to
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`which they are entitled under New York’s leave law in a timely fashion. Ms. Chandler and Ms.
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`Bernard had to navigate a complex Human Resources system to obtain their COVID-19 leave
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`and pay and did not receive the pay promptly in the next pay period. Ms. Chandler and Ms.
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`Bernard ultimately received pay for fewer hours than they would have worked in the pay period
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`and did not receive the extra $2 per hour hazard pay for those hours. Further, Ms. Chandler was
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`paid at a short-term disability rate of her hourly wage, rather than the full wage, for the days she
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`was on COVID-19-related leave in excess of fourteen days.
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`Plaintiffs seek injunctive relief regarding Amazon’s operation of JFK8, communication
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`to its employees, and sick leave payments. Their proposed injunction would require Amazon to:
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`• Communicate clearly with workers that if they are experiencing symptoms of
`COVID-19 or otherwise may be subject to a quarantine, they should consult a
`physician or public health professional and not attend work, that they will not face
`any adverse employment consequences for taking quarantine leave, and that they
`will be paid on their next paycheck for taking quarantine leave;
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`6
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`Case 1:20-cv-02468-BMC Document 73 Filed 11/02/20 Page 7 of 24 PageID #: 1890
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`• Continue suspending rate requirements and refrain from counting hand washing
`and bathroom breaks against TOT requirements, and communicate these policies
`to workers;
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`• Provide workers with adequate time and tools to clean and disinfect their
`workstations;
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`• Provide access to air-conditioned break rooms where workers can maintain social
`distancing;
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`• Comply with New York’s COVID-19 paid leave law;
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`• Either a) delegate all contact tracing responsibilities to the local health department
`or another independent, trained professional without relying on its own
`surveillance footage to determine which workers have been in contact with one
`another or, if Amazon continues to perform contact tracing itself, then b) conform
`those efforts to New York and CDC guidance for contact tracing, such as
`interviewing the infected individual about others with whom they have been in
`touch, accounting for their activities in the 48 hours before diagnosis or onset of
`symptoms, and following up with all identified contacts of the infected individual
`to inform them of their exposure and inquire if they are experiencing symptoms;
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`• Allow workers immediate access to forty-eight hours of paid time off even if they
`have not yet accrued it for the remainder of 2020.
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`Plaintiffs Bernard and Chandler also seek damages for Amazon’s failure to timely pay
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`their COVID-19 sick leave pay.
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`DISCUSSION
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`In deciding a motion to dismiss under Federal Rules of Civil Procedure rule 12(b)(6), the
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`Court must “constru[e] the complaint liberally, accept[] all factual allegations in the complaint as
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`true, and draw[] all reasonable inferences in the plaintiff’s favor.” Elias v. Rolling Stone LLC,
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`872 F.3d 97, 104 (2d Cir. 2017) (quoting Chase Grp. All. LLC v. City of New York Dep’t of
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`Fin., 620 F.3d 146, 150 (2d Cir. 2010)). To survive a motion to dismiss, a complaint must plead
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`“enough facts to state a claim to relief that is plausible on its face,” Bell Atl. Corp. v. Twombly,
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`550 U.S. 544, 570 (2007), and to “allow[] the court to draw the reasonable inference that the
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`defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
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`
`
`7
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`Case 1:20-cv-02468-BMC Document 73 Filed 11/02/20 Page 8 of 24 PageID #: 1891
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`A.
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`The primary-jurisdiction doctrine applies to plaintiffs’ public nuisance and NYLL §
`200 claims
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`The doctrine of primary jurisdiction seeks to maintain a proper balance between the roles
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`of courts and administrative agencies. See Tassy v. Brunswick Hosp. Ctr., Inc., 296 F.3d 65, 68
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`(2d Cir. 2002). “The doctrine allows a district court to refer a matter to the appropriate
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`administrative agency for ruling in the first instance, even when the matter is initially cognizable
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`by the district court.” Rural Cmty. Workers All. v. Smithfield Foods, Inc., 459 F. Supp. 3d 1228,
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`1240 (W.D. Mo. 2020) (quoting Access Telecomms. v. Sw. Bell Tel. Co., 137 F.3d 605, 608 (8th
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`Cir. 1998)). “[T]he reasons for its existence and the purposes it serves are twofold: the desire for
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`uniformity and the reliance on administrative expertise.” Tassy, 296 F.3d at 68. “Thus, in
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`determining whether to apply the primary jurisdiction doctrine, [courts] must examine whether
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`doing so would serve either of these purposes.” Id.
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`
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`There is no fixed formula for applying the doctrine. See United States v. W. Pac. R. Co.,
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`352 U.S. 59, 64 (1956). Courts in this Circuit generally consider four factors:
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`(1) whether the question at issue is within the conventional experience of
`judges or whether it involves technical or policy considerations within
`the agency’s particular field of expertise;
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`(2) whether the question at issue is particularly within the agency’s
`discretion;
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`(3) whether there exists a substantial danger of inconsistent rulings; and
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`(4) whether a prior application to the agency has been made.
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`
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`Ellis v. Tribune Television Co., 443 F.3d 71, 82-83 (2d Cir. 2006). Courts “must also balance
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`the advantages of applying the doctrine against the potential costs resulting from complications
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`and delay in the administrative proceedings.” Id. (quoting Nat’l Commc’ns Ass’n, Inc. v. AT&T
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`Co., 46 F.3d 220, 223 (2d Cir. 1995)).
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`
`
`8
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`

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`Case 1:20-cv-02468-BMC Document 73 Filed 11/02/20 Page 9 of 24 PageID #: 1892
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`
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`The Occupational Safety and Health Administration (“OSHA”) is the federal agency
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`within the Department of Labor specifically charged with regulating health and safety in the
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`workplace. It has the primary responsibility for setting and enforcing standards and providing
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`research, information, education, and training to assure safe and healthful working conditions.
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`OSHA has broad prosecutorial discretion to carry out its enforcement responsibilities under the
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`Occupational Safety and Health Act (“OSH Act”), 29 U.S.C. § 651 et seq. See Nat’l Roofing
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`Contractors Ass’n v. U.S. Dep’t of Labor, 639 F.3d 339, 343 (7th Cir. 2011). The OSH Act
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`permits employees who believe that a violation of a safety or health standard – or an imminent
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`danger – exists at their workplace to request an inspection by filing a complaint with the
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`Secretary of Labor. See 29 U.S.C. § 657(f)(1). If the Secretary determines that there are
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`reasonable grounds to believe that such a violation or danger exists, the Secretary must initiate an
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`inspection “as soon as practicable, to determine if such violation or danger exists.” Id. If the
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`Secretary believes, as a result of an investigation, that the employer has violated the OSHA
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`requirements, he will issue a citation to the employer. See 29 U.S.C. § 658(a).
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`OSHA’s enforcement actions are subject to review by the Occupational Safety and
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`Health Review Commission (“OSHRC”), a specialized body, and OSHRC’s decisions are
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`reviewable by federal courts of appeals. See 29 U.S.C. §§ 660-661. In addition, the OSH Act
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`provides a narrow vehicle to seek mandamus in federal district court “to restrain any conditions
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`or practices . . . [where] a danger exists which could reasonably be expected to cause death or
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`serious physical harm immediately” pending the outcome of a potential enforcement proceeding
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`or where a recommendation by an OSHA inspector is arbitrarily rejected by the Secretary. 29
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`U.S.C. § 662.
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`9
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`

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`Case 1:20-cv-02468-BMC Document 73 Filed 11/02/20 Page 10 of 24 PageID #: 1893
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`OSHA has not issued a standard specific to COVID-19, relying instead on optional
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`guidance7 and existing standards for, inter alia, personal protective equipment, general
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`environmental controls, and toxic and hazardous substances, as well as employers’ obligations
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`under the OSH Act’s general duty clause.8 This does not mean, however, that OSHA has
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`abdicated its responsibilities during the pandemic. Rather, the agency has exercised its
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`discretion in determining how to proceed in the face of an evolving pandemic fraught with
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`uncertainty. The agency has “reasonably determined” that a standard “is not necessary at this
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`time” to combat this unprecedented pandemic because it has existing regulatory tools at its
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`disposal “to ensure that employers are maintaining hazard-free work environments.” In re Am.
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`Fed’n of Labor & Cong. of Indus. Orgs., No. 20-1158, 2020 WL 3125324, at *1 (D.C. Cir. June
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`11, 2020).
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`
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`OSHA continues to use its enforcement mechanisms during the pandemic. According to
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`its website, OSHA has received nearly 10,000 COVID-19-related complaints at the federal level,
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`including almost 200 from the general warehousing and storage industry, opened over 1,000
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`federal inspections, and issued around 150 citations.9
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`Plaintiffs argue that their workplace safety claims simply “require the application of law
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`to disputed facts” and do not implicate OSHA’s expertise and discretion. I disagree. The central
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`issue in this case is whether Amazon’s workplace policies at JFK8 adequately protect the safety
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`of its workers during the COVID-19 pandemic. No doubt, shutting down JFK8 completely
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`7 See Guidance on Preparing Workplaces for COVID-19, OSHA (2020),
`https://www.osha.gov/Publications/OSHA3990.pdf.
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`8 See COVID-19 Standards, OSHA (last visited Oct. 30, 2020), https://www.osha.gov/SLTC/covid-
`19/standards.html.
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`9 See COVID-19 Response Summary, OSHA (last visited Oct. 30, 2020), https://www.osha.gov/enforcement/covid-
`19-data#fed_inspections_open; Inspections with COVID-related Citations, OSHA (last updated Oct. 22, 2020),
`https://www.osha.gov/enforcement/covid-19-data/inspections-covid-related-citations.
`10
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`

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`Case 1:20-cv-02468-BMC Document 73 Filed 11/02/20 Page 11 of 24 PageID #: 1894
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`during the pandemic while continuing to provide employees with pay and benefits would be the
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`best protection against contagion at the workplace. But someone has to strike a balance between
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`maintaining some level of operations in conjunction with some level of protective measures.
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`The question is whether it should be OSHA or the courts.
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`Plaintiffs seek relief that involves detailed aspects of how Amazon regulates its
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`workplace, from how Amazon manages employee productivity, to the time and tools provided to
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`sanitize workstations, to the availability of air-conditioned break rooms, among other injunctive
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`mandates. Plaintiffs’ claims thus turn on factual issues requiring both technical and policy
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`expertise. They would have me analyze how Amazon’s employment practices and policies
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`impact transmission of a poorly understood disease in JFK8, determine whether those policies
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`create an unsafe workplace or otherwise violate state and federal guidance and standards, and
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`implement and oversee new workplace policies. But courts are not expert in public health or
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`workplace safety matters, and lack the training, expertise, and resources to oversee compliance
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`with evolving industry guidance. Plaintiffs’ claims and proposed injunctive relief go to the heart
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`of OSHA’s expertise and discretion.
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`The risk of inconsistent rulings further weighs in favor of applying the doctrine of
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`primary jurisdiction. This case concerns state and federal guidance addressing workplace safety
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`during a pandemic for which there is no immediate end in sight. Regulating in the age of
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`COVID-19 is a dynamic and fact-intensive matter fraught with medical and scientific
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`uncertainty. There is room for significant disagreement as to the necessity or wisdom of any
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`particular workplace policy or practice. Courts are particularly ill-suited to address this evolving
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`situation and the risk of inconsistent rulings is high. Court-imposed workplace policies could
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`
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`11
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`Case 1:20-cv-02468-BMC Document 73 Filed 11/02/20 Page 12 of 24 PageID #: 1895
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`subject the industry to vastly different, costly regulatory schemes in a time of economic crisis. A
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`determination by OSHA, on the other hand, would be more flexible and could ensure uniformity.
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`It bears noting that plaintiffs have not made an application to OSHA. “If prior
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`application to the agency is present, this factor provides support for the conclusion that the
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`doctrine of primary jurisdiction is appropriate.” Ellis, 443 F.3d at 89. A failure to apply to the
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`agency “may weigh against referral,” id., but does not in this case. Plaintiffs chose to pursue
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`their claims in federal court rather than apply for relief from OSHA, and the other factors
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`overwhelmingly support applying primary jurisdiction.
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`Finally, the advantages of applying the doctrine outweigh the potential costs of delay in
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`the administrative proceedings. Plaintiffs’ challenges to Amazon’s workplace policies require
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`the expertise of the agency tasked with regulating workplace health and safety. Although this
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`decision will necessarily delay the implementation of plaintiffs’ proposed relief, at least part of
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`the responsibility for that delay lies with plaintiffs. Plaintiffs decided not to pursue emergency
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`relief in this case and did not pursue a parallel track by applying to OSHA.
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`Accordingly, it is appropriate to apply the doctrine of primary jurisdiction to plaintiffs’
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`public nuisance and NYLL § 200 claims. When a district court refers an issue or claim to an
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`administrative agency under the doctrine of primary jurisdiction, it may either dismiss or stay the
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`action. Dismissal without prejudice is preferable to a stay here so that plaintiffs may determine
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`whether to seek relief through the appropriate administrative and regulatory framework.
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`B.
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`Plaintiffs’ public nuisance and § 200 claims would otherwise be dismissed
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`Even if I did not defer to OSHA’s primary jurisdiction, plaintiffs’ public nuisance and
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`NYLL § 200 claims would not survive Amazon’s motion to dismiss.
`
`
`
`12
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`Case 1:20-cv-02468-BMC Document 73 Filed 11/02/20 Page 13 of 24 PageID #: 1896
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`1. Public Nuisance
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`A cause of action for public nuisance addresses conduct that “amounts to a substantial
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`interference with the exercise of a common right,” such as endangering the health or safety of a
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`considerable number of individuals of the public. Benoit v. Saint-Gobain Performance Plastics
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`Corp., 959 F.3d 491, 504 (2d Cir. 2020) (citation omitted). Conduct that causes the spread of
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`contagious disease can constitute such an interference if it violates the public’s right to health
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`and safety. Cf. Tull v. United States, 481 U.S. 412, 421 n.5 (1987) (public nuisances include
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`“the keeping of diseased animals, or a malarial pond”).
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`“A public nuisance is a violation against the State and is subject to abatement or
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`prosecution by the proper governmental authority.” 532 Madison Ave. Gourmet Foods, Inc. v.
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`Finlandia Ctr., Inc., 96 N.Y.2d 280, 292, 727 N.Y.S.2d 49, 56 (2001). The exception is that a
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`“public nuisance is actionable by a private person only if it is shown that the person suffered
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`special injury beyond that suffered by the community at large.” Benoit, 959 F.3d at 505 (quoting
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`532 Madison, 96 N.Y.2d at 292, 727 N.Y.S.2d at 56). The injury at issue to support a private
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`action must be different in “kind,” not simply “degree,” from that suffered by the public. See id.
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`A private action for public nuisance cannot be maintained where the injury is “so general and
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`widespread as to affect a whole community.” Burns Jackson Miller Summit & Spitzer v.
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`Lindner, 59 N.Y.2d 314, 334, 464 N.Y.S.2d 712, 721 (1983).
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`Here, plaintiffs’ alleged injuries are that they have an increased risk of contracting
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`COVID-19 and fear of the same because they work in conditions, or live with someone who
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`does, that increase the risk of spread of COVID-19. This injury is common to the New York
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`City community at large. Plaintiffs and the public alike face varying levels of risk of exposing
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`themselves and the people they live with to the virus. Unlike the noxious landfill, a malarial
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`pond, or a pigsty, JFK8 is not the source of COVID-19, emitting the virus from a single source
`13
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`Case 1:20-cv-02468-BMC Document 73 Filed 11/02/20 Page 14 of 24 PageID #: 1897
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`into an otherwise healthy world. The public at large cannot avoid COVID-19 simply by
`
`avoiding JFK8, its immediate surrounding area, and its employees. Instead, plaintiffs and the
`
`public risk exposing themselves to COVID-19 nearly anywhere in this country and the world.
`
`Both plaintiffs’ concern and their risk present a difference in degree, not kind, from the
`
`injury suffered by the public at large and thus is not actionable in a private action for public
`
`nuisance.
`
`2. NYLL § 200
`
`For their claim under NYLL § 200, plaintiffs argue that Amazon breached its duty to
`
`maintain a safe workplace by failing to adopt and adhere to New York’s workplace guidance and
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`COVID-19 leave law, causing plaintiffs “emotional harm and in some cases pecuniary harm and
`
`physical harm associated with the COVID-19 infection,” as well as “likely . . . future harm.”
`
`i. Plaintiffs’ § 200 claim is not preempted by the OSH Act
`
`Amazon argues that plaintiffs’ § 200 claim is preempted by the OSH Act. Congress can
`
`preempt state law expressly or implicitly. See Marentette v. Abbott Labs., Inc., 886 F.3d 112,
`
`117 (2d Cir. 2018). Courts “start with the assumption that the historic police powers of the
`
`States were not to be superseded by the Federal Act unless that was the clear and manifest
`
`purpose of Congress.” Wyeth v. Levine, 555 U.S. 555, 565 (2009). The party asserting that
`
`federal law preempts a state law claim bears the burden of establishing preemption. See
`
`Marentette, 886 F.3d at 117.
`
`“The doctrine of implied preemption will bar a state law claim where, ‘under the
`
`circumstances of a particular case, the challenged state law stands as an obstacle to the
`
`accomplishment and execution of the full purposes and objectives of Congress.’” In re Jackson,
`
`972 F.3d 25, 34 (2d Cir. 2020) (quoting Crosby v. Nat’l Foreign Trade Council, 530 U.S. 363,
`
`373 (2000)). “What constitutes a ‘sufficient obstacle’ is a ‘matter of judgment, to be informed
`
`
`
`14
`
`

`

`Case 1:20-cv-02468-BMC Document 73 Filed 11/02/20 Page 15 of 24 PageID #: 1898
`
`by examining the federal statute as a whole and identifying its purpose and intended effects.’”
`
`Id. (quoting Crosby, 530 U.S. at 373).
`
`The OSH Act authorizes the Secretary of Labor to promulgate federal occupational safety
`
`and health standards. Section 18(a) of the OSH Act provides that “[n]othing in this chapter shall
`
`prevent any State agency or court from asserting jurisdiction under State law over any
`
`occupational safety or health issue with respect to which no standard is in effect.” 29 U.S.C. §
`
`667(a). An “occupational safety and health standard” under the Act is “a standard which
`
`requires conditions, or the adoption or use of one or more practices, means, methods, operations,
`
`or processes, reasonably necessary or appropriate to provide safe or healthful employment and
`
`places of employment.” 29 U.S.C. § 652(8). “[A] state law requirement that directly,
`
`substantially, and specifically regulates occupational safety and health is an occupational safety
`
`and health standard within the meaning of the Act.” Gade v. Nat’l Solid Wastes Mgmt. Ass’n,
`
`505 U.S. 88, 107 (1992). “[N]onapproved state regulation of occupational safety and health
`
`issues for which a federal standard is in effect is impliedly pre-empted as in conflict with the full
`
`purposes and objectives of the OSH Act.” Id. at 98-99.
`
`In addition to reserving for state regulation those issues not governed by a federal
`
`standard, Congress also provided states the option of completely replacing federal standards with
`
`their own. A state may “assume responsibility for development and enforcement therein of
`
`occupational safety and health standards relating to any occupational safety or health issue with
`
`respect to which a Federal standard has been promulgated” by submitting a state “plan for the
`
`development of such standards and their enforcement.” 29 U.S.C. § 667(b).
`
`In 1973, New York submitted a plan that received the Secretary’s approval, but withdrew
`
`the plan two years later. See Irwin v. St. Joseph’s Intercommunity Hosp., 236 A.D.2d 123, 127,
`
`
`
`15
`
`

`

`Case 1:20-cv-02468-BMC Document 73 Filed 11/02/20 Page 16 of 24 PageID #: 1899
`
`665 N.Y.S.2d 773, 777 (4th Dep’t 1997). New York thus cannot enforce state occupational
`
`safety and health standards for issues covered by a federal standard. See Gade, 505 U.S. at 98-
`
`99.
`
`Finally, “[f]ederal regulation of the workplace was not intended to be all encompassing,”
`
`Gade, 505 U.S. at 96, and Congress further saved certain areas from federal preemption. The
`
`OSH Act does not “supersede or in any manner affect any workmen’s compensation law” or
`
`“enlarge or diminish or affect in any other manner the common law or statutory rights, duties, or
`
`liabilities of employers and employees under any law with respect to injuries, diseases, or death
`
`of employees arising out of, or in the course of, employment.’” 29 U.S.C. § 653(b)(4). By
`
`including this savings clause, “Congress expressly carved out of its preemption rules state
`
`common law and statutory tort remedie

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