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Posts Tagged ‘Amazon’

Employer’s Prohibition of Black Lives Matter Attire Insufficient Basis for Discrimination and Retaliation Claims

Posted on: February 18th, 2021

By: Jennifer Markowski and Jennawe Hughes

The federal lawsuit filed by employees of Whole Foods Market, Inc. (“Whole Foods”) and, Inc. (“Amazon”) who were prohibited from wearing Black Lives Matter (“BLM”) attire, was dealt a significant blow when a Massachusetts federal judge dismissed the majority of the case finding all but one employee had failed to allege facts sufficient to survive a Rule 12(b)(6) challenge.

In the summer of 2020, numerous Whole Foods employees began wearing face masks and other attire with BLM messaging. In July, twenty-eight current and former employees asserted claims of race discrimination and retaliation under Title VII of the Civil Rights Act of 1964 (“Title VII”) after being told they could not wear the BLM attire per company dress code policy (the “Policy”) and were disciplined when they refused to abide by the Policy. Employees claimed that the Policy was selectively enforced in that LGBTQ and National Rifle Association messaging had previously been permitted and that such selective enforcement was discriminatory. They further contended that disciplinary measures taken for refusing to adhere to the Policy was retaliatory.

Judge Allison Burroughs found the employees did not adequately assert a Title VII violation because the facts alleged did not support a finding that employees were treated differently on the basis of their race as all employees, irrespective of their race, were prohibited from wearing attire with BLM messaging. Judge Burroughs noted “inconsistent enforcement of a dress code does not constitute a Title VII violation because it is not race-based discrimination and because Title VII does not protect free speech in a private workplace.” The associational discrimination claims similarly failed because there were no allegations supporting a finding that the employees had been “discriminated against on the basis of race, rather than on the basis of race-related messaging.”

With regard to retaliation, the claims of all but one employee who engaged in protected activity, including filing a charge with the EEOC prior to her termination, were dismissed. Judge Burroughs held that wearing BLM attire was not a protected activity as it was not done to oppose an unlawful employment practice, but rather to make a broader social statement. Absent a protected activity, any disciplinary action could not be unlawful retaliation. In reaching her decision, Judge Burroughs pointedly remarked “Whole Foods employees that are not happy with the Policy can find someplace else to work, express themselves outside the workplace, work with Whole Foods to change the Policy, and/or publicize the Policy in an effort to get consumers to spend their dollars elsewhere, but, under the facts alleged here, their redress does not lie with Title VII.”

Although the bulk of the claims were dismissed, this case nonetheless serves as a reminder to employers that selective enforcement of uniform policies can be risky and open the door to a lawsuit and potential liability. It also highlights the importance of ensuring dress code policies are facially neutral.

For more information, please contact Jennifer Markowski [email protected] and Jennawe Hughes at [email protected].

E-tailers Beware: California Court of Appeal Rules that Amazon Can be Sued for Products Sold by Third-Party Vendors on its Website

Posted on: August 21st, 2020

By: Anastasia Osbrink

A California Court of Appeal issued a ruling on August 13, 2020, holding that Amazon can be held strictly liable for products sold on its website by third-party sellers through its “Fulfilled by Amazon” (“FBA”) program. (Bolger v., LLC (Aug. 13, 2020, No. D075738) ___Cal.App.5th___ [2020 Cal. App. LEXIS 761].)This ruling now opens the door for consumers to sue Amazon for any defective products sold on its website regardless of whether those products are directly sold by Amazon.

The ruling arises out of a lawsuit filed by a woman, Angela Bolger, who purchased a computer battery through Amazon that was sold through third-party vendor Lenoge Technology (HK) Ltd., fictitiously named “E-Life” on Amazon (“Lenoge”). Bolger alleges that the battery exploded several months later, causing her severe burns. Bolger sued several defendants, including Lenoge and Amazon, alleging strict products liability, negligent products liability, breach of implied warranty, breach of express warranty, and “negligence/negligent undertaking.” Lenoge did not appear and default judgment was entered against it. Amazon moved for summary judgment, arguing that a theory of strict liability and other related torts could not apply to it because it did not distribute, manufacture, or sell the product in question. A San Diego Superior Court granted the motion for summary judgment, and Bolger appealed.

Now the Court of Appeal has overruled the Superior Court, holding that Amazon “placed itself between Lenoge and Bolger in the chain of distribution” by accepting possession of the battery, storing it, promoting its website, listing the battery for sale, receiving Bolger’s payment, and shipping the battery to Bolger. Amazon inserted itself into the relationship between Lenoge and Bolger and set the terms of its own relationship with Lenoge, including demanding indemnification and fees. The court held that whether Amazon is labeled as a “retailer,” “distributor,” or “facilitator,” “it was pivotal in bringing the product here to the consumer,” and therefore, can be held strictly liable for any defect with the product. (Id. at *3.)

This holding follows a similar ruling in Pennsylvania, which was appealed and is now pending. (Oberdorf v. Inc. (3d Cir. June 2, 2020, No. 18-1041) 2020 U.S. App. LEXIS 17974.) Should these rulings remain in effect, they likely will change how websites offering products through third-party sellers approach their roles in the chain of distribution and assess future potential liability. It may – and should – make online retailers such as Amazon more cautious about offering products that they have not vetted or tested.

If you have questions or would like more information, please contact Anastasia Osbrink at [email protected].

Jeff Bezos Just Challenged Amazon’s Retail Rivals To Match Its $15 Minimum Wage – Is Bezos’ Challenge Checkmate or Checkout For the Push To Increase Minimum Wage?

Posted on: April 15th, 2019

By: Brad Adler and Matthew Jones

Five months ago, in November, 2018, Amazon raised its minimum wage to $15/hour. Now, Amazon’s leader is challenging his competitors in the retail sector to do the same.  In a letter to shareholders that was submitted to the SEC on April 11, 2019, Jeff Bezos stated “Today I challenge our top retail competitors (you know who you are!) to match our employee benefits and our $15 minimum wage… Do it! Better yet, go to $16 and throw the gauntlet back at us. It’s a kind of competition that will benefit everyone.”

Bezos’ aggressive challenge comes in the midst of an undercurrent of momentum for an increase in both federal and state minimum wage laws. That momentum seems to be leading to some changes at the state level. For instance, on January 1, 2019, California’s minimum wage was increased to $12/hour for companies with 26 or more employees. Likewise, Maine increased its minimum wage from $10,00 to $11.00 in 2019 and Massachusetts raised its minimum wage rate from $11.00 to $12.00.

So what effect, if any, will Bezos’ challenge and the state movements have on the federal minimum wage? Currently, the federal minimum wage is $7.25/hour, which is significantly lower than the minimum wage rate in many states (including Arizona, Arkansas, Colorado, Connecticut, Florida, Illinois, Maryland, New York and New Jersey). Just recently, the House Education and Labor Committee passed the “Raise the Wage Act,” which proposes to increase the federal minimum wage to $15/hour over the next six years. Most commentators believe that the likelihood that this bill will become law is very low, but it nevertheless is a reminder to all of the stakeholders, including employers, that the issue of minimum wage isn’t going away anytime soon.

Of course, not everyone takes kindly to the billionaire’s $15/hour challenge. In response to the challenge, Walmart’s executive vice president of corporate affairs Dan Bartless tweeted out: “Hey retail competitors out there (you know who you are) how about paying your taxes?”

If you have any questions or would like more information, please contact Brad Adler at [email protected] or Matthew Jones at [email protected].