In recent days, Amazon has worked to soften the blow of a blistering piece about its culture in Sunday’s New York Times. In the article’s immediate aftermath, Jeff Bezos wrote a memo to employees, saying the account “doesn’t describe the Amazon I know or the caring Amazonians I work with every day.” He further pointed employees to a newer piece by current Amazon engineer Nick Ciubotariu that praises the company’s workplace environment.
The moves helped push the story in a positive direction for the company, as did the Times’s own public editor’s assessment of the story, which, she wrote yesterday, should have provided more balance and context. (The Times’s executive editor, Dean Banquet, later let her know that he disagreed entirely with her assessment.)
Still, employment attorneys suggest it may be a little soon for Amazon to break out the bubbly. They think there could well be a class-action lawsuit in the many anecdotes cited by the Times of employees who were treated poorly — particularly those who appear to have they lost their jobs owing to health issues and other demands outside of Amazon.
Says Wilma Liebman, a visiting scholar at Rutgers University School of Management and Labor Relations, who spent three terms as a member of the National Labor Relations Board (including, most recently, as its chair): “Being a very tough boss, not being nice, not being sympathetic – that isn’t illegal in itself.” Violating overtime law and discriminating against women because they are pregnant is, however.
Indeed, the big question that creative attorneys may right now be mulling, suggests Liebman, is whether — in the words of one former Amazon HR director interviewed by the Times — the company’s “purposeful Darwinism” goes too far.
For his part, Oakland, Ca.-based civil rights attorney Barry Goldstein thinks the company’s so-called Organization Level Review, where managers debate subordinates’ rankings and assign and reassign names, is a possible Achilles’ heel for Amazon. Says Goldstein, who has won judgments against Oracle among other companies, “A lot of time, women don’t do well in a forced-ranking kind of competitive involvement.”
He points to Elizabeth Willet, a former Army captain who served in Iraq and joined Amazon to manage housewares vendors. According to the Times, after she had a child, she arranged to be in the office from 7 a.m. to 4:30 p.m. Her manager assured her that the arrangement was working, yet colleagues, who didn’t see how early she was arriving, sent her manager negative feedback.
As the Times piece notes, these same colleagues are ranked and the bottom performers are pushed out each year.
“Obviously, caregivers aren’t going to put in as much time as others, even though they may be just as productive or more productive,” Goldstein says. “What would be interesting would be to see if a greater proportion of women than men [are forced to leave as a result of those reviews]. That’s the kind of thing I’d be very concerned about [if I were Amazon] — the impact of these practices on women.”
Another potential problem for Amazon, in Liebman’s view, is centralization.
In the past, big cases have been lost because of litigants’ inability to show commonality. Perhaps the most notable of these was a class-action suit against Wal-Mart that had sought billions of dollars on behalf of as many as 1.5 million female workers and was thrown out by the Supreme Court in 2011. The suit claimed that Wal-Mart’s policies had led to discriminatory decisions over pay and promotions.
The Supreme Court ruled that the practices were handled by different managers at different store locations across the country and were not “common to the class” of female employees who sued. But in Amazon’s case, the story “made it sound like is there is a conscious, centralized culture that’s been put in place” at the company, notes Liebman.
Even without a full-blown class-action lawsuit to defend itself against, Amazon may be looking at higher legal fees in its near future. In fact, even more likely than former employees banding together are individual employees – and attorneys – who may be emboldened by the scope of the article to pursue the company on a one-on-one basis.
“When you’re a highly paid employee, you don’t have quite as much incentive to pursue rights on a class-action basis as would a low-wage employee because you’re more likely to be able to afford counsel,” explains top San Francisco employment attorney Michael Rubin of Altshuler Berzon. “You’re also more likely to attract counsel who will take your case on a contingency basis because as a highly paid employee, your damages could be greater.”
All that said, continues Rubin, “An intrepid class-action lawyer may be able to work with one of more of the white collar employees who suffered adverse consequences. You can imagine a lawsuit that encompasses similarly situated employees who, because of the same policies and practices, suffered, even if the particulars changed from case to case.”
Amazon will undoubtedly be prepared for whatever comes its way.
“I’m sure that Amazon is looking closely at the allegations and conducting its own investigation,” Rubin says. “The attractiveness of its brand is obviously highly important to company.”
Like many major corporations, Amazon has experience with class-action lawsuits, too. Less than a year ago, it won a Supreme Court case against warehouse workers who alleged they spent up to 25 minutes waiting to go through security clearance at warehouses in Nevada and wanted to be paid for that time.
In the court’s ruling, Justice Clarence Thomas said the law requires only that workers be paid for activities before and after their shifts when the activities are “integral and indispensable” to the job they are hired to perform. Apparently, standing in line to get screened didn’t meet that bar.
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