A March 31, 2020 Newsweek Article reported that Amazon fired one of its Staten Island warehouse employees after he organized a protest calling for greater protections to keep warehouse employees safe during the coronavirus crisis. One of the employee’s coworkers had tested positive for COVID-19 the week prior, and the employee claimed that many had also tested positive than Amazon publicly admitted.
Amazon claimed it fired the employee for refusing to adhere to social distancing guidelines and for not self-isolating despite his contact with the employee who had tested positive. Whether Amazon’s explanation is accurate is unclear. However, New York Attorney General Letitia James was reluctant to accept Amazon’s explanation for the termination, and she tweeted that she was considering legal action against Amazon:
In this midst of a pandemic, Chris Smalls & his colleagues bravely protested the lack of precautions that @amazon employed to protect them from #COVID19. Then he was fired. I’m considering all legal options & calling on the NLRB to investigate. Amazon, this is disgraceful.
Amazon’s problems are not limited to the Staten Island warehouse: a number of employees at different facilities have disclosed concerns that the facilities’ safety measures were insufficient, including complaints that the facilities did not have enough hand sanitizer and disinfectant.
What does this mean for New Hampshire employees?
New York Attorney General James’s call to the NLRB (National Labor Relations Board) is a reminder that employees should not forget their rights under the NLRA (National Labor Relations Act). This is especially true where “essential” businesses must continue operating, and “essential” employees must continue working, while the coronavirus pandemic progresses. Under Governor Sununu’s March 26, 2020 Emergency Order, businesses and employees in the following areas are classified as “essential:”
- Law enforcement, public safety, and first responders;
- Health care, public health, and human services;
- Food and agriculture;
- Energy, electric, petroleum, natural and propane gas, steam, waste and wastewater;
- Transportation and logistics;
- Public works;
- Communications and information technology;
- Other community-based essential functions;
- Hazardous materials;
- Financial services;
- Chemical; and
- Defense industrial base.
The NLRA can offer New Hampshire employees a safe harbor to protect their health and safety in the workplace.
The NLRA prohibits employers from interfering with, restraining, or otherwise coercing employees in their exercise of rights guaranteed under Section 7 of the Act, including employees’ right to organize and participate in union activities. The NLRA also prohibits employers from threatening or taking adverse action against employees who in engage in “other concerted activities for the purpose of collective bargaining or other mutual aid or protection.”
Thus, an activity is "concerted" if it is engaged in with or on the authority of other employees and is for the collective, mutual benefit of a group of employees. Concerted activity does not include actions taken solely by a single employee and only for that employee’s benefit. However, concerted activity does include circumstances where a single employee seeks to initiate, induce, or prepare for group action, as well as where an employee brings a group complaint to the attention of management. Employees should remain aware that activity is protected by the NLRA only if it concerns employees' interests as employees, and an employee engaged in otherwise protected, concerted activity may lose the Act's protection through misconduct.
As more and more information comes to light about essential businesses that are not adequately protecting their employees’ health and safety, essential employees are left with no choice but to advocate for their own health and safety as they perform the vital functions necessary for our communities. If your employer has taken adverse action against you for doing so, you need an experienced attorney. Please call us at (603) 288-1403 to see if we can help or fill out our online contact form for a free consultation.