back to article Rather than take the L, Amazon sues state that dared criticize warehouse safety

Amazon has sued Washington state's Department of Labor & Industries, claiming an order by government officials requiring the internet mega-giant to reduce hazards at a warehouse breaks the 14th Amendment to the US Constitution. The state's safety watchdogs inspected an Amazon fulfillment center – code-named BFI4 – in Kent, …

  1. Kev99 Silver badge

    Hope Amazon gets kicked out of the courthouse, a regular "bum's rush" if you will.

  2. Anonymous Coward
    Anonymous Coward

    Shouldn't that be ".. and cost the company millions of dollars its lawyers earned".

  3. sreynolds Silver badge

    Who are their lawyers?

    Sounds a bit dodgy if the first thing that they go for is the constitution. Normally there is precedent that upholds the laws that are enacted by the states.

    1. DS999 Silver badge

      Re: Who are their lawyers?

      If you know you are violating a state law, your only defense is getting a court to find that law is somehow invalid.

      1. veti Silver badge

        Re: Who are their lawyers?

        I hate to side with Amazon, but it sounds like they do have a point. If you're being fined for breaking a rule, surely the least you're entitled to is a specific citation of which rule you're breaking. How else can you be sure not to break it again?

        So the penalty is imposed by a state regulator, which is fair enough. But there's no meaningful way to appeal it. That does seem kinda unreasonable.

        I know, Amazon... But we need to see due process observed, even for the devil. Otherwise, what chance will we have, when it's our turn?

        1. LybsterRoy Silver badge

          Re: Who are their lawyers?

          I'm impressed, upvoted and agree with you. There seems to be a lot of "ignore the facts beat up the nasty company" approach.

          1. badflorist Silver badge

            Re: Who are their lawyers?

            "...ignore the facts..."

            Are you claiming to have facts about this case?

            Agreeing with Amazon here is simply admitting you haven't worked in physical labor this millennium. Many things are common sense based even though that is arbitrary and ambiguous. For example, "reasonable pace", "eye contact", "appropriate precautions". Absolutely nothing would be accomplished in safety if a trial case had to be heard every time common sense was ignored, especially for corporate profit.

            Amazon being a shit bag is par for the course and it's very insulting that they want _TAX_PAYERS_ to pay for their lawyers... scum bags being scum bags.

            1. flayman

              Re: Who are their lawyers?

              The key "fact" is that there is an ongoing appeal which Amazon could in theory win. Forcing them to implement expensive changes which they argue are baseless would have a detrimental effect on their business. It is, after all, up to a court to decide whether to allow their motion to be heard.

              1. MrDamage Silver badge

                Re: Who are their lawyers?

                this is the same company that would rather introduce "mental health booths" for it's overworked and underpaid warehouse workers instead of, you know, paying them a living fucking wage.

                1. SundogUK Silver badge

                  Re: Who are their lawyers?

                  The "living fucking wage" is bullshit. Amazon is offering a wage they think is fair; if you don't like it, don't work there.

                  1. EnviableOne Silver badge

                    Re: Who are their lawyers?

                    no, they are offering a wage they think they can get away with, not what they think is fair.

                    And where exactly are you supposed to work when they have systematically undercut and put out of business every other game in town?

                    Amazon's distribution organisation only has people until they can invent machines to replace them.

                  2. MrDamage Silver badge

                    Re: Who are their lawyers?

                    Minimum wage, and child labour laws, both exist to remind society that greedy arseholes would pay you less, and exploit children, if they could get away with it.

        2. John69

          Re: Who are their lawyers?

          Is it better that people have to work in unsafe environments until every appeal avenue has been exhausted?

          1. JimC

            Re: work in unsafe environments

            Perhaps there should be a 7 figure fine/compensation sum for every injury incurred while the are playing lawyer games?

          2. Graham Cobb Silver badge

            Re: Who are their lawyers?

            No, but a reasonable approach would be for:

            i) a discount on fines if the company immediately admits fault and fixes it, or

            ii) a stay of requirements until an appeal is heard - at which time the discount is no longer available, and affected employees would be entitled to complain in their own legal proceedings that the company was aware of the problems from the date of the original notice

            iii) no further delays available - if the company wants to appeal further they have to do it after acting on the order.

          3. Loyal Commenter

            Re: Who are their lawyers?

            If the person claiming it's unsafe has nothing to back up their claims of it being unsafe (e.g. specific safety regulations) beyond "I reckon" then technically, it's not an unsafe environment. I hate to side with Amazon on this (I really do), but to be honest, the state regulator should be able to point to specific legislation that is being breached, otherwise it does all sound extremely dodgy.

            For example, if there is legislation that says workers who lift and carry should not be subjected to repetitive lifting, or twisting motions beyond a certain limit or timespan, then they should be able to show this. If the legislation is lacking, and it's something they'd like to see legislated for, then they need to get the legislation passed first. I'm tending towards saying that such legislation should exist, but it probably doesn't because the US are notoriously poor at passing legislation that protects workers.

            1. SImon Hobson

              Re: Who are their lawyers?

              I agree, and have upvoted you, but ...

              It is simply not possible to write rules to cover every situation. In safety, there is generally (usually enshrined in regulations) a requirement that risks be minimised "so far as reasonably practical" (or as low as reasonably practical, ALARP). Naturally, that leads to "debates" about how low is practical.

              As I read the article, the state inspector has decided that the risks are not ALARP - i.e. that it's not reasonable for Amazon to continue subjecting it's workers to the risks. That is always going to be a subjective thing.

              Normally, a responsible employer would take the attitude of "OK, I see what you mean there - how about we do [some plan for change] ?". And between them and the regulator, they will agree how far it is reasonable to go.

              In this case, Amazon are taking the "we completely disagree and don't want to spend any money" approach. Yup, gready evil employer, blah, blah. But they do have a point that there should normally be a route to challenging the regulator (they do sometimes go too far) without having to sign something admitting criminality.

              So yes, there really should be a route for challenge - and let the court decide where the "as low as reasonably practical" line should be drawn. But I'd suggest that if the employer challenges, and loses, and anyone suffers any detriment that would have been avoided by prompt action - then they should really be hung up to dry over it. E.g, Amazon failed to overturn the regulators decision, someone has hurt their back, Amazon should be well and truly stuffed for wilfully exposing the employee to the risk - which in that case has now been demonstrated to have been real.

              1. Loyal Commenter

                Re: Who are their lawyers?

                Agreed, it is certainly not a simple situation.

                Not being able to challenge a regulator's opinion on interpreting the law through a simple mechanism sounds wrong. In many industries, for example, there is an ombudsman. I appreciate that state inspectors are somewhat different in nature to industry, but the concept of an appeal / review mechanism is generic.

                In terms of specific legislation; I do agree here, I wouldn't necessarily expect legislation to be that specific, so this is where precedent comes into play; the parallel with legal precedent here is clear.

                If the regulations aren't well drafted enough, possibly because of changes in working practice, then I'd say the gaps should be filled with legislation. Certainly, if the regulator wants to make new precedent by interpreting existing legislation in a new way, then there should be a review process to make sure that this new precedent is reasonable.

                If, of course, the regulator is following existing precedent that has been applied elsewhere, then it should be simple for any review board to point to it, and to send Amazon packing. To refuse the opportunity to do so, however, seems haughty.

                This doesn't negate the fact that Amazon are probably chancing their arm as well. It's perfectly possible for both sides of an argument to be wrong.

              2. veti Silver badge

                Re: Who are their lawyers?

                A reasonable rule would be "this body here (some group including doctors, ergonomists, statisticians) gets to define rules according to this statutory protocol (which would specify the evidence thresholds needed, notice to be provided of changes etc.), and those rules are what will be audited."

                Alternatively, the company could be required to show that they had taken advice from such an expert agency and had tailored the environment according to it. In which case, the burden of compliance moves to the agency that made the review.

                1. SImon Hobson

                  Re: Who are their lawyers?

                  Alternatively, the company could be required to show that they had taken advice from such an expert agency ...

                  Ah, down that road be dragons !

                  Here in the UK, once upon a time, a business could ask the local Fire Brigade to call round and give an opinion on fire precautions etc. Thus you had what seemed like a sensible situation where the people responsible for (for example) making sure none of your staff or visitors end up and bits of crackling if there's a fire directly influence how you try to ensure that.

                  Some time ago, that changed. It's now incumbent on the "responsible person" for the building to do an assessment and implement suitable control measures. Naturally, the potential for getting this wrong and being found responsible for someone's death, means that many don't want to take the risk (and don't have the knowledge either). Hence a big industry popped up overnight in doing your fire risk assessment for you - and responsible persons up and down the country use them so that they can tick the box for having done a fire safety assessment, and tick that other box where they are not personally liable if it turns out to be wrong.

                  Of course, in all of this, common sense and pragmatism got left behind. But that's OK, the relevant boxes are ticked.

          4. SundogUK Silver badge

            Re: Who are their lawyers?

            There is no evidence given that it is an "unsafe environment." That's Amazon's point.

            1. Loyal Commenter

              Re: Who are their lawyers?

              It's Amazon's claim. It remains to be seen if they have a point.

        3. tiggity Silver badge

          Re: Who are their lawyers?

          There will be general health and safety rules violated, as these are typically (not a USian so cannot speak in detail on their laws, especially at state level) loosely worded in the UK, precisely because the nature of work changes & its impossible to describe every possible bad practice and keep it up to date, so its left to (extremely rare) inspections to flag up issues, unions bringing legal action etc..

          Amazon are just pathetically trying to say there is no specific set of ultra specific rules that are being quoted & they might still be risking employees health when they try and make the bare minimum improvements they think they can get away with.

          Hint - do a proper job of improving the workplace environment, might be an alien concept to profit obsessed companies but employee safety matters more than adding a miniscule productivity increase at the expense of worker health.

          1. imanidiot Silver badge

            Re: Who are their lawyers?

            The problem is that if Amazon were to do a proper job in their warehouse their entire system collapses. Their warehouses are DESIGNED to destroy cheap labour because it's cheap and doing a proper job would involve a lot of investment in warehouse systems. One of the problems is that humans have to keep running across a giant warehouse to pick stuff out of bins (constantly being shifting around by robots mind). Most modern warehouses have systems to bring the items to the pickers instead of having the pickers move to the items. Making that shift however is a monumental shift in design paradigm for the warehouse and all the systems in it and it basically would mean shutting the warehouse down, stripping it down bare to carcass and rebuilding the insides from the floor up. New machinery, new control software, new robots, retraining employees for the new work methods, etc.

            Amazon SHOULD be doing that, but the end result I bet will be that Amazon will move it's warehouses out of the state.

            1. ICL1900-G3 Bronze badge

              @iamanidiot

              No, you're really not.

              1. imanidiot Silver badge

                Re: @iamanidiot

                There are some things where I'm not, there are some things where I know a little bit, there are a LOT of things where I'm an idiot and not afraid to admit it.

            2. John Brown (no body) Silver badge

              Re: Who are their lawyers?

              "Their warehouses are DESIGNED to destroy cheap labour because it's cheap and doing a proper job would involve a lot of investment in warehouse systems."

              I wonder if 3 shifts/24 hours of manual labour for a year costs more or less than the $20,000 Musk reckons his humanoid robots will cost? Is Amazon his eventual target market?

              1. doublelayer Silver badge

                Re: Who are their lawyers?

                "I wonder if 3 shifts/24 hours of manual labour for a year costs more or less than the $20,000 Musk reckons his humanoid robots will cost?"

                More. I found a few estimated average for Amazon's warehouse workers in the US ranging from $15.50 to $17.00. There appear to be some jobs and locations significantly exceeding these, but they didn't provide enough information to filter out higher-level supervisor jobs in the warehouses so I can't confidently use those. I know they've talked about increasing that and may have done so, but let's assume these are still accurate. In fact, let's assume these are overestimating and use a nice round $15.00 per hour.

                If they have absolutely no overtime, then wages alone for a single worker-year (full-time 8 hour shifts 5 days a week) would be $31,320. Extending that to a single worker for every hour in a 24/7 setup would be $131,400. Amazon also has health insurance benefits, payroll taxes, unemployment insurance, and other expenses, so these numbers are significantly below what they have to spend.

                The only problem is that a humanoid robot may not be able to do what a human can. I don't work in robotics, but I know enough people who have to watch them do a lot of work to get a robot to do something that comes very naturally to a human. If the robots are to be deployed in an environment with unplanned obstacles and for tasks without an easy deterministic answer, the robots may be incapable of reaching the efficiency of a human.

        4. sreynolds Silver badge

          Re: Who are their lawyers?

          I don't Aren't these the same "people" that make you agree to terms and conditions that:

          (i) limit your rights to remedies

          (II) prohibit you from joining class actions

          (iii) ask that you agree to some dodgy tribunal or mediation and prohibit you from seeking remedy in a court

          and so on and on with other onerous terms.

        5. Anonymous Coward
          Anonymous Coward

          Re: Who are their lawyers?

          Dangerous driving is illegal here, and it also has no specific definition - but substantial penalties. And no, they decide if it was dangerous after the event.

          The Amazon argument is a bit like saying: OK but you don't specify that banana skins are hazardous, soeven if we have 4 x as many falls as other warehouses it can't be a legal hazard 'cos you didn't enumerate them all, and anyway it isn't illegal until you list that exact one.

          1. SundogUK Silver badge

            Re: Who are their lawyers?

            You can challenge an accusation of dangerous driving before any penalties are applied. That is specifically NOT the case here.

        6. Ace2 Silver badge

          Re: Who are their lawyers?

          So you want the law to say, “Employees can lift 48 lbs at a time, up to 10 times per hour, no more than 6.5 hours per day…”

          And if the laws were written like that you’d be picking on the specifics and complaining about them being out of whack.

        7. DrSunshine0104

          Re: Who are their lawyers?

          Not an entirely valid but not entirely invalid point. I worked in local government for quite some time and have even written local ordinances. Sometimes policy is written intentionally vague, but not for nefarious reasons but for practicality. It shouldn't be surprising that enumerating every possible situation would not only be a huge waste of time but it would also be easier loopholes for the laws to be abused. Despite the common trope, there are vagaries written into laws all the time, lawyers and courts work with them all the time as well.

          In fact, the suit described in this article is exactly how the author of the law would have expected the vague definitions to be challenged or defined. There is the argument that it then tilts the definitions in favour of those who have the money to challenge the law, but that is also the imperfect system we have in the US.

          It is a bit like the paraphrase, "I cannot define pornography but I know it when I see it."

    2. UCAP Silver badge

      Re: Who are their lawyers?

      Suspect they are using internal corporate lawyers, although any lawyer worth their Harvard degree will argue black is white if they are handed enough cash.

    3. gandalfcn Silver badge

      Re: Who are their lawyers?

      "Who are their lawyers?" They come across as the same ones IQ45 uses.

      1. Anonymous Coward
        Anonymous Coward

        Re: Who are their lawyers?

        No, Amazon's laywers are actually competent.

  4. Mike 137 Silver badge

    Key question

    "The Fourteenth Amendment states that no US citizen can be denied due process of law"

    Are corporations 'citizens', so does the 14th apply to them??

    1. Spanners Silver badge
      FAIL

      Re: Key question

      Are corporations 'citizens'

      They certainly like to pretend that corporations are people.

      1. Loyal Commenter

        Re: Key question

        Well yes and no. They like to claim personhood when it gains them rights, but not when it gains them responsibilities.

        You end up with Corporate entities that have the protections of the law, but no ethical responsibility.

      2. Someone Else Silver badge

        Re: Key question

        I thought we were so over this when Mitt ("Corporations are people, my friends!") Romney was politely dispensed with some number of political cycles ago.

    2. nematoad Silver badge

      Re: Key question

      Are corporations 'citizens'

      They are not citizens but legal persons.

      Definition of legal person from Merriam-Webster

      legal person noun

      Legal Definition of legal person

      : a body of persons or an entity (as a corporation) considered as having many of the rights and responsibilities of a natural person and especially the capacity to sue and be sued.

      1. John Brown (no body) Silver badge

        Re: Key question

        Except that not all "legal persons" can be sentenced to prison or vote so a corporation isn't actually a "legal person" but a "very special legal person" with different rights and responsibilities from the meatbag "legal persons". Maybe it's time to redefine what a "corporate person" is and exactly what rights and responsibilities it has?

    3. Pascal Monett Silver badge

      Re: Key question

      Agreed.

      A corporation is not a citizen, and certainly not when its bank account is in the billions.

      Unfortunately, some stupid judge way back when in the Wild West decided otherwise, and here we are.

      1. Sven Coenye
        Unhappy

        Re: Key question

        It wasn't even a judge. In 1886, the court reporter added a note to a ruling saying the 14th amendment applied to corporations, even though the ruling itself didn't state that.

        1. runt row raggy

          Re: Key question

          you compelled me to read up, and your claim is not substantiated by sources i can find, but subsequent court actions appear to affirm the note.

          rating: misleading.

    4. Twilight

      Re: Key question

      They are since the horrible Citizens United ruling.

      Originally corporations were "people" only for the purposes of lawsuits (prior to that, you had to file suit against individuals and the leaders/owners could all point fingers at each other making it virtually impossible to prosecute). Then Citizens United decided that corporations are people for all legal purposes (but especially for giving massive amounts of bribes ^W campaign contributions to politicians).

    5. Old Used Programmer

      Re: Key question

      I will believe that corporations are people when Texas executes one.

    6. doublelayer Silver badge

      Re: Key question

      The amendment concerned does not say "no US citizen can be denied due process of law". It says that no person can be denied due process of law. The distinction is relevant because corporations are considered legal persons but not citizens. The debate over exactly what the personhood definition should mean has come to include a lot of things, but it's pretty clear that one of the most basic ones is that the laws apply to corporations as they would apply to individuals. Being in a corporation shouldn't mean that you can do whatever you want or that the government can do whatever it wants to you.

      Whether you implement that with a legal personhood hack, by extending the language, or (as was often done before the legal personhood system) making a link between the people owning or running a corporation and that corporation and using their rights as the corporation's rights, you'll get to the same place. Other aspects of legal personhood are not necessarily included. The last approach breaks a lot, which is why it was replaced.

  5. Potemkine! Silver badge
    Holmes

    The more I learn about the working conditions in the US, the more I'm happy to work in my socialist hellhole.

    == Bring us Dabbsy back! ==

  6. localzuk Silver badge

    Amazon may be right here?

    The process for citation does seem a bit backwards. Signing a form saying you're guilty before you know what you're guilty of? That seems all kinds of backwards.

    1. Anonymous Coward
      Anonymous Coward

      Re: Amazon may be right here?

      It seems quite common in the USofA. Nancy Pelosi said of one of Biden's massive spending bills that they had to vote on it to find out what was in it.

      The PNW hates non union business as it doesn't make the politicians as much money. I dislike amazon as much as the next person (but they are just so cheap!!!) however this action may save some smaller business who don't have very deep pockets and pet lawyers from similar claims.

      Also a lot of laws in the USofA are made in reaction to something bad or more usually someone complaining a lot. Dumping PFOA's into the ground and making the locals sick and killing livestock? Hmmm... no specific law against dumping that so just carry on!

      1. Ace2 Silver badge

        Re: Amazon may be right here?

        You’re an AC and, apparently, an idiot. That was Pelosi discussing Obamacare, and how *people* would have to find out what’s in it as it was implemented.

        Of course everybody hated what was in it… until a few years went by and people realized lots of parts of it are great. Some Repub admitted in public a few months ago that, yeah, they were mostly mad about the ‘Obama’ part of Obamacare.

    2. heyrick Silver badge

      Re: Amazon may be right here?

      It seems to me that if the warehouse is somehow unsafe, then it would have a higher number of workplace accidents.

      Does it? Do they even record this sort of thing (if not, why not?)?

      1. Loyal Commenter

        Re: Amazon may be right here?

        Use of the comparative form, "higher" implies a comparison. Higher than what? The other Amazon fulfilment centre across the road that doesn't subject its workers to the same practices? Another firm that does something similar, but different, and not on the same scale? The local hairdressers? The ex-planet Pluto? Some cheese?

        That sort of metric is only useful when it’s a meaningful comparison, and I think in this case, like-for-like is probably quite hard to measure.

        1. John Brown (no body) Silver badge

          Re: Amazon may be right here?

          No, it isn't. It's a warehouse. There are stats for all sorts of work environments which can give a pretty good baseline that can apply across an industry with adjustments for size and worker density. It's the sort of thing insurance actuaries and H&S regulators have been dealing with for years. Amazon are not special or unique.

          1. Loyal Commenter

            Re: Amazon may be right here?

            I don't disagree with that per se, but to just say "higher" without specifying what you are comparing is meaningless.

            Are workplace injuries higher than those in other warehouse environments? Workplaces as a whole? production-line type environments? What's the period of comparison? How is it adjusted for work practices that may hinder or prevent reporting?

            The original post doesn't acknowledge that this is not going to be a simple like-for-like comparison, and any normalisation or adjustment of figures for comparison is going to carry with it an error bar. For instance, if you have a baseline of 5 worker incidents per year to which you are comparing, and your adjusted figures are 6 ± 10, you can't draw any meaningful conclusions.

      2. Anonymous Coward
        Anonymous Coward

        Re: Amazon may be right here?

        IIRC one of the related arguments in this mess is that Amazon makes it very hard for injured workers to actually report work-related injuries as such. These kinds of stats are usually collected and tracked by the regional labor (labour in the UK, Canada, and elsewhere) board, but if actual work-related injuries do not in fact get reported as such, the stats get skewed.

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