It was recently reported that Amazon terminated a Staten Island-based warehouse employee after he participated in a worker walkout protesting the company’s response to apparent incidents of coronavirus in the facility. New York’s Attorney General is looking into whether this constitutes unlawful retaliation. (See also, Law360, March 30, 2020, “Amazon, Instacart Workers Strike Over COVID-19 Conditions”). Amazon apparently contends that it terminated the employee because he came to work despite Amazon’s directive to stay home due to his apparent proximity to a COVID19-diagnosed employee.
At this point, it is too early to determine what the facts are, let alone whether they would be sufficient to allege/state a viable legal claim. (This is why we have juries.) Let’s assume that Amazon terminated this employee because he raised concerns about whether the company has implemented sufficient measures to ensure the safety of its workers vis-a-vis the coronavirus pandemic. Would this worker have a legal claim?
For example, NY’s general “whistleblower law” (NY Labor Law § 740)
creates a cause of action in favor of an employee who has suffered a “retaliatory personnel action” as a consequence of, inter alia, “disclos[ing], or threaten[ing] to disclose to a supervisor or to a public body an activity, policy or practice of the employer that is in violation of law, rule or regulation which violation creates and presents a substantial and specific danger to the public health or safety,” or as a consequence of “object[ing] to, or refus[ing] to participate in any such activity, policy or practice in violation of a law, rule or regulation.”
Fough v. Aug. Aichhorn Ctr. for Adolescent Residential Care, Inc., 139 A.D.3d 665, 666 (2d Dep’t 2016); NY Labor Law § 740(2)(a).
Courts have held that Section 740 requires more than simply raising concerns about an employer’s practices, and that a plaintiff must identify a specific violation of law. Specifically, as one court recently explained: “To maintain an action under § 740, a plaintiff must:  establish a violation of a law, rule or regulation, which information must be actual and not merely possible, and (2) demonstrate that the lack of compliance presents a substantial and specific danger to the public health or safety.” Cason v. Doe 1-2, 2020 WL 759012 (EDNY Feb. 14, 2020) (dismissing § 740 claim, where plaintiff failed to identify any specific violations of law or that the alleged safety issues “in any way implicated the safety of the general public.”); Freese v. Willa, 89 A.D.3d 795 (App. Div. 2nd Dept. 2011).
It is not immediately clear what, if any, “violation of law” may have occurred in the Amazon case that may be sufficient to state a Section 740 claim.