Amazon Case Shows How A GC’s Barbs Can Sting Back

Law360, November 16, 2020, Inc. general counsel David Zapolsky is learning a lesson the hard way, but other in-house counsel can gain insight about how to deal with a disgruntled employee from Zapolsky’s predicament, after his disparaging remarks about a fired Black employee are now playing a key role in a discrimination suit.

Christian Smalls, an assistant manager at an Amazon warehouse on Staten Island, filed the proposed discrimination class action in New York federal court on Nov. 12.

Smalls’ suit refers to a document that general counsel Zapolsky gave to CEO Jeff Bezos that suggests the company can easily take Smalls on in the media because he is “not smart or articulate.”

Jonathan Hyman of Meyers Roman Friedberg & Lewis, who represents employers and who writes the Ohio Employer Law Blog, told Law360 he would “never recommend putting in writing a strategy to smear, discredit, or otherwise harm an employee” as Zapolsky did here.

“It sounds an awful lot like retaliation, and otherwise is just a really bad look for the company,” Hyman said.

The suit says Smalls was fired in March in retaliation for complaining to management and then leading a protest about the company’s failure to provide protective equipment and other COVID-19 protections to its warehouse workers, who are predominantly Black and Latino.

It refers to the document Zapolsky gave to CEO Jeff Bezos and other executives during a meeting suggesting that Amazon should make Smalls “the face of the entire union/organizing movement” because he would be an easy target. The document was leaked to the Vice Media Group, which quoted it online in April.

“He’s not smart, or articulate, and to the extent the press wants to focus on us versus him, we will be in a much stronger PR position than simply explaining for the umpteenth time how we’re trying to protect workers,” Zapolsky wrote, according to the Vice article.

The lawsuit contends that “by and through the release of this memo, it has become clear that top level Amazon executives, including CEO Jeff Bezos, perpetuated the company’s pervasive discriminatory animus against its minority workers.”

Amazon has denied the allegations, saying Smalls was fired for leaving quarantine to attend a protest in Amazon’s parking lot.

“My comments were personal and emotional,” Zapolsky said in a statement. “I was frustrated and upset that an Amazon employee would endanger the health and safety of other Amazonians by repeatedly returning to the premises after having been warned to quarantine himself after exposure to virus Covid-19. I let my emotions draft my words and get the better of me.”

An Amazon spokesperson said Zapolsky did not know Smalls was Black when he wrote the comments.

“We terminated Mr. Smalls for putting the health and safety of others at risk and violations of his terms of his employment,” the spokesperson said. “[He] had close contact with a diagnosed associate with a confirmed case of COVID-19 and was asked to remain home with pay for 14-days. Despite that instruction to stay home with pay, he came onsite further putting the teams at risk.”

Hyman said the remarks could actually foster the purpose that Zapolsky was trying to deter.

“This will play right into the hands of the union organizers, which will use it as Exhibit A as to why Amazon’s workers need a union to protect and advocate for them,” Hyman said.

One of Smalls’ attorneys, longtime civil rights activist Tricia “CK” Hoffler of the CK Hoffler Firm, told Law360 that her legal team has not yet seen the Zapolsky document but that it has been referenced in other litigation and probably produced under seal until a court decides whether it is privileged.

“That document contains information that involves my client, and that means Amazon’s got a problem,” Hoffler said. “It was filled with racial animus. I think it’s impossible that he [Zapolsky] didn’t know Mr. Smalls is Black.”

She clarified that this suit is about Amazon’s alleged disparate treatment for minority workers during COVID-19 and does not allege health and safety violations except as they pertain to inferior working conditions for minorities. She said New York state, for one, is looking into the health and safety issues.

A general counsel, she said, “cannot be guilty of what you advise your clients not to do. That memo, those actions, were irresponsible and put the company at risk. When you as a general counsel engage in inappropriate behavior, it is always going to get out.”

She said she expects to seek the Zapolsky document in discovery and expects Amazon to try to exclude it by claiming attorney-client privilege. “The fight will be on and we’ll see,” she said.

Hyman, the employers lawyer, said the privilege issue is one more lesson that general counsel can take from the Amazon situation.

“Businesses need to understand that just because a document is created by an attorney doesn’t mean it’s protected by attorney-client privilege,” he said.

The privilege only attaches to legal advice, and general counsel also often wear “an operations hat,” he said. “Operational or business advice is usually not privileged.”

Laura Jacobsen, who co-chairs the labor and employment law group at McDonald Carano LLP in Reno, Nevada, also stressed that the privilege lesson is important for in-house counsel.

“If you are an in-house attorney making these communications,”first you must be careful what you put in writing, then be careful where you disseminate it,” Jacobsen said. “If it’s a fairly large group, you are multiplying the chances someone will leak it and the privilege could be waived.”

As for the remarks themselves, she said, “It seems like he may not understand the broader context of those comments.” She said the document also speaks to how every company and its leadership needs to be undergoing diversity and inclusion training, including learning about unconscious bias.

“It’s not just for legal reasons, or for defending a lawsuit or avoiding claims of discrimination,” Jacobsen said. “It’s about enhancing the productivity of your company and creating a workplace culture that is aware of what’s going on in the world in 2020.”

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