'Harsh' and 'heartless': Amazon's automation is causing a spike in employee lawsuits

Just as homebound consumers have sent Amazon’s sales soaring during the coronavirus pandemic, the online retailer appears to be experiencing a boom in another area—employment litigation.

Lawyers who’ve litigated against Amazon said a recurring issue in the employment litigation is the anonymous, bureaucratic face the company presents in its dealings with employees who seek answers on such workplace issues as disability leave.

Related: Amazon’s automated HR system leaves workers frustrated

And that’s due in part to the high level of automation in the human resources department, those lawyers said.

In the past three weeks, four employment suits by Amazon employees have landed at the U.S. District Court for the District of New Jersey and three others were filed in state Superior Court. The suits bring claims ranging from failure to accommodate medical issues and retaliation against a worker who complained about violations of COVID-19 safety protocols to pregnancy discrimination against a nonbinary male employee.

It’s too soon to tell whether the short-term uptick in Amazon suits will balloon into a larger trend.

Seven employment suits were filed against Amazon in the first three quarters of 2020, the same number as were filed in the same period in 2019. But it seems like a safe bet that Amazon employment litigation in New Jersey is likely to continue growing.

The company opened its first New Jersey warehouse in 2014 and now has 15 distribution facilities around the state. Business publication ROI-NJ reported on Sept. 15 that Amazon is the largest corporate employer in New Jersey, with 40,000 employees. The company also just announced that it is adding 7,000 full- and part-time workers in New Jersey in time for the holiday season.

Who got the work?

Among those profiting from the litigation is defense counsel Morgan, Lewis & Bockius, whose Princeton office handles most of Amazon’s New Jersey employment suits. An exception is a class action suit filed in U.S. District Court in December 2019 on behalf of Amazon Flex package delivery drivers, who claim they were wrongly classified as independent contractors. Gibson, Dunn & Crutcher is handling that case for Amazon.

The Amazon Flex misclassification case was filed by Costello & Mains of Mount Laurel, which represents many of the plaintiffs filing suit against Amazon in New Jersey.

Plaintiffs counsel Kevin Costello said when Amazon employees contact his firm, they describe many of the same complaints the attorneys hear about other large employers: retaliation for those who ask to take leave, discrimination and harassment, and claims that the company fails to accommodate disabilities.

“I can tell you the sense we’ve had, with as many touches with people who have experience at Amazon as we’ve had, is that there ought to be less impatience with people that have disabilities and ask for accommodations around that, and when people make requests for accommodations that there has to be a good-faith interactive process,” Costello said. “You’ve got to have a conversation, a real one. You have to do it as long as it’s not an undue burden. Not every employer does that.”

An inability to reach an agreement with the company on accommodation of a work-related injury or health issue is a common thread in many of the Amazon suits.

In one such case, employee John Betz claims he was terminated after taking medical leave for a seizure disorder. Betz claims the company’s highly automated human resources operations thwarted his efforts to return to work.

Betz sent numerous messages to human resources but “was pinged back with absurd messages about using the HR chatbot, not e-mailing from an approved e-mail address, and no claims being opened through HR because some of his requests were not clear,” according to his suit, filed by David Korsen of Karpf, Karpf & Cerutti in Bensalem, Pennsylvania. ”This was all because defendants use automated messages to communicate with employees who often have complex questions or issues that need to be resolved.”

“In the interest of automating everything and attempting to create efficiencies, it is exceptionally difficult for any Amazon laborers to have any dialogue with actual human resources management or other personnel of Defendants,” Korsen writes in his suit.

Disjointed?

New Jersey attorney Walter Dana Venneman, who has brought about a half-dozen employment suits against Amazon, agreed that deliberations of the company’s human resources offices are a weakness for the company.

In the cases he had with Amazon, “there was not a back-and-forth with respect to accommodation. You can’t see where there’s been a clearly expressed desire on the part of Amazon to accommodate” the employee, Venneman said.

For example, the company might instruct an employee to send paperwork somewhere via email, followed by an instruction from a different source to fax the paperwork, he said.

Venneman cites the case of his client, Monique Jemerson, whose suit against Amazon is pending in U.S. District Court.

Jemerson worked at an Amazon facility in Teterboro until a diagnosis of multiple sclerosis prompted her to take medical leave. When she sought to return, she was told to contact the company’s “accommodation team.”

But between March and December in 2019 Jemerson engaged in an “informal, interactive discussion” that was “neither meaningful, nor exercised in good faith,” her suit claims. In December she received a letter from Amazon saying that she had voluntarily resigned, which was not true, the suit says.

“There is a general failure to communicate and consider accommodations,” said Venneman.

Amazon also uses technology to keep close count on employee productivity, as defined by how many items or pieces of merchandise they handle in a given period, Venneman said. If an employee is not sufficiently productive and shows up late for work, the system will mark them for termination, which results in a high turnover, he said.

Venneman said the Morgan Lewis lawyers he has dealt with in Amazon litigation are “gentle people” and “honest brokers.” He has settled two cases with Amazon, and he is pleased with the outcome of one of those cases.

But he feels the company’s treatment of his client in the other case was “harsh” and “heartless” because it declined to reinstate him to his job after a violation of safety rules. Venneman said he cannot identify those cases because of confidentiality agreements.

Amazon did not respond to a request for comment about its New Jersey employment suits.

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