The Justice Department investigation into Amazon.com Inc. worker safety likely will dig into questions of whether the online retailer engaged in widespread misreporting of injury and illness rates, criminal and labor law scholars say.
“I don’t think the US attorney’s office would become involved unless there was some evidence that there was a pattern of practice of Amazon in concealing information from OSHA, trying to hide its safety record from OSHA, lying to OSHA inspectors over a concerted period of time,” Chicago Law School professor Jonathan Masur told Bloomberg Law in an interview.
The US Occupational Safety and Health Administration and the US Attorney’s Office for the Southern District of New York announced July 22 the start of an investigation and work site inspections based, in part, on complaints received by the prosecutor’s office. The disclosure came after the prosecutors and OSHA had been meeting weekly since early May.
The inspections and investigation come as OSHA faces pressure from Congressional Democrats and labor organizers to take a closer look at the speed at which Amazon expects warehouse employees to process packages.
OSHA inspected three Amazon facilities in Florida, Illinois, and New York, and the attorney’s office created a website where current and former Amazon workers can provide information on their work site’s safety programs.
The close involvement of OSHA and prosecutors at the outset of a case “if not unprecedented, it is exceptionally rare,” said professor J.H. “Rip” Verkerke, director of the University of Virginia Law School’s Program for Employment and Labor Law Studies.
The US attorney’s office didn’t respond to requests to discuss the inquiry. An Amazon spokesman said the company stood by its statements June 23 that it was cooperating with OSHA and expected to be cleared.
Fraud, False Statements
“From looking at OSHA enforcement over the past few decades, the involvement of criminal prosecutors is rare, but when it happens it’s usually pursuing some sort of fraud, false statement theory,” said Daniel Richman, a former prosecutor in the New York’s southern district and now a professor at the Columbia School of Law in New York.
Richman sees two federal criminal statutes coming into play: the law that makes it a felony to conspire to defraud a government agency and a law establishing a felony for providing false, fictitious, or fraudulent statements or documents to the government.
Raising the case out of OSHA administrative law and into federal criminal law brings the options of larger penalties and a longer statute of limitations than OSHA law allows.
“It’s pretty well known that OSHA enforcement is rather toothless,” Richman said.
OSHA can only cite violations that happened within the preceding six months and propose fines, while the criminal laws have a five-year window for misdeeds and carry the threat of higher fines and jail sentences.
A Calendar, Not a Clock
Building a case against Amazon will take time.
“Six months from now we might see charges filed, but I would be pretty surprised if it happened before that,” Masur said.
If grand jury indictments are issued, the allegations could be consolidated under one U.S. attorney, or spread out if the alleged crimes were more localized.
“The real question is whether they can find evidence of some general corporate policy at Amazon to conceal information about safety hazards or anything like that,” Masur said. “If there is some general policy, they might want to just bring one big case against Amazon as a whole.”
John Teakell, a former assistant US attorney for the Northern District of Texas and now a Dallas-based white-collar crime defense attorney, said the Southern District of New York’s dedication of resources indicates the prosecutors believe the allegations have substance.
If the office brings charges against Amazon, one potential defense for the company is arguing that “rogue employees” acted on their own and violated the company’s internal rules to follow OSHA requirements, Teakell said.
Whistleblowers, Click Here
The US attorney’s decision to open a website where workers can submit information about Amazon is unusual but makes sense, attorneys said.
“You don’t see that at lot in any types of criminal cases. Usually, these investigations are conducted a lot more quietly,” Masur said.
Richman noted that the Southern District of New York also used its website to encourage women with information about abuse by disgraced financier Jeffrey Epstein to contact investigators.
The website could lead to valuable information for prosecutors from whistleblowers who otherwise wouldn’t come forward.
“You want someone who would tell you what is really happening you’re not able to see,” Masur said.
The website could also be a conduit for labor organizers to encourage workers to share claims against Amazon.
“It’s tried-and-true organizing technique to raise these issues,” said the University of Virginia’s Verkerke.
OSHA had already opened three inspections based on information from the attorney’s office received prior to the public announcement.
Agency inspection records as of Tuesday show OSHA in July opened three Amazon inspections based on referrals—the MCO2 fulfillment center in Deltona, Fla.; the MDW8 fulfillment center in Waukegan, Ill.; and the DYO1 delivery station in New Windsor, N.Y.
The Florida and Illinois inspections are listed as partial inspections, meaning that at the outset the checks are limited to issues raised in the referrals, although OSHA could expand the scope. The New York inspection is listed as complete, enabling inspectors to check for any violation.
OSHA has up to six months to issue citations for alleged violations at the facilities.
Company’s Clean Record
Amazon’s OSHA inspection record doesn’t show widespread violations of any type.
Of the approximately 50 times OSHA inspected US Amazon work sites in 2020 and 2021, just eight resulted in citations and only one of those included an alleged violation of recordkeeping requirements, agency enforcement data shows.
OSHA requires most employers with 10 or more workers to keep records of any job-related illness or injury that requires more than first-aid treatment or leads to the employee missing a day or more from their usual job.
The agency annually collects the data from large employers or smaller businesses in high-hazard industries. OSHA then posts the numbers on its website and may use the figures to target employers who have above-average rates.
Employers who don’t send the data to OSHA or keep accurate records can be cited if the violation is found within six months of when it happened.
The agency’s report database shows that for 2021, Amazon submitted reports for about 2,530 work sites, including warehouses and Whole Foods Market Inc. stores. Labor organizations, politicians, and others have used the Amazon data to highlight facilities with high injury rates compared to the retail warehouse and delivery industries.