New York Attorney General Moves to Dismiss Amazon’s Preemptive COVID-19 Practices Lawsuit

On Monday in the Eastern District of New York, New York Attorney General Letitia James filed a motion to dismiss and a supporting memorandum in Inc.’s “anticipatory federal action” against the state filed shortly before the state’s lawsuit contesting Amazon’s COVID-19 practices in its warehouse.

Amazon preemptively sued the New York Attorney General (NYAG) in February seeking relief from Attorney General James’ alleged unlawful attempts to subject Amazon at its Staten Island Fulfilment Center, JFK8, to New York’s oversight and regulatory enforcement activities. Additionally, Amazon was trying to preempt legal action from the Attorney General regarding the tech giant’s handling of COVID-19 conditions at JFK8. Amazon contended that the Occupational Safety and Health Act (OSH Act) preempts the NYAG’s regulatory efforts in the workplace and the National Labor Relations Act (NLRA) preempts the NYAG’s claims that Amazon retaliated against workers that complained about purported health and safety violations. Amazon added that the NYAG did not have authority to assert the New York Labor Law claims.

A few days later following an investigation, the NYAG sued Amazon in the Supreme Court of the State of New York, New York County, for its alleged failure to provide health and safety measures to workers at its New York facilities during the COVID-19 pandemic.

Attorney General James is seeking to dismiss or, alternatively, stay this action pending the NYAG’s state action. In the memorandum, the NYAG asserted that Amazon’s complaint should be dismissed because the court lacks federal subject matter jurisdiction “because Amazon requests anticipatory declaratory and injunctive relief while disputing the meaning and application of state law.” 

The Attorney General noted that “a safe and retaliation-free workplace is an important state interest; and the State Action affords an adequate opportunity for judicial review of Amazon’s preemption defenses.”

The NYAG also asserted that Amazon’s complaint failed to state a claim because the Occupational Safety and Health Administration “has left COVID-19 workplace safety issues to the states, so there is no OSH Act preemption,” thus, according to the NYAG, the primary-jurisdiction doctrine is applicable in this instance. 

Moreover, Attorney General James noted that New York Workers’ Compensation Law does not bar the state’s claims as the Office of the Attorney General has authority under New York state law to pursue claims for New York Labor Law violations. 

According to the NYAG, the “NLRA preemption …does not apply” to the state’s claims because “the State Action is different from the one that would be presented to the NLRB” and the local interest exception is applicable.

Amazon’s opposition to the motion is due May 17 and the Attorney General’s reply is due May 24.

Amazon is represented by Gibson, Dunn & Crutcher LLP.