In a much-read August 16 New York Times article, Seattle-based Amazon was both heralded as an innovative, “thrilling,” place to work and pilloried as every employee’s worst nightmare.
Just a few of the many examples provided by the New York Times’ interviews of current and former employees:
- One worker described a conversation in which her boss told her “raising children would most likely prevent her from success at a higher level because of the long hours required.”
- Another anecdote: “One ex-employee’s fiancé became so concerned about her nonstop working night after night that he would drive to the Amazon campus at 10 p.m. and dial her cellphone until she agreed to come home.”
- An employee described being given a low performance review after returning from leave for thyroid cancer.
Can a negative performance review really result from taking time off to battle cancer? According to that Amazonian, absolutely.
If the New York Times’ interviews are any indication, Amazon may be flirting with some significant employment law liability. Take the “raising children” comment, for example. If that comment accompanied other conduct that rose to the level of severe or pervasive behavior, it could give rise to a pregnancy or familial discrimination claim under state or federal law. Washington’s Law Against Discrimination, RCW 49.60.180, specifically bars marital status discrimination; pregnancy discrimination is prohibited under state as well as federal law.
Likewise, if the employee with thyroid cancer was indeed given lower reviews because she took leave to treat herself, it could raise liability under the state and federal Family and Medical Leave Acts, Washington’s Law Against Discrimination, RCW 49.60, or even the Americans with Disabilities Act.
Other Amazon experiences described in the article seemed to expose the tip of a legal iceberg. Many interviewees described crying, or seeing co-workers cry, at work because of the constant pressure to perform. The piece also described Amazon CEO Jeff Bezos’s belief that, as the article put it, “harmony is often overvalued in the workplace . . . it can stifle honest criticism and encourage polite praise for flawed ideas.”
The article also described Amazon’s Anytime Feedback Tool, which lets Amazonians give anonymous feedback about co-workers, subordinates, or superiors at anytime. The National Labor Relations Act long ago sought to encourage employees to associate and discuss wages and working conditions. But by creating a tattletale culture that might prevent employees from acting the way they want or dissuade them from discussing working conditions, the tool may be suppressing NLRA rights. According to one article interviewee, “Ideas are critiqued so harshly in meetings at times that some workers fear speaking up.” Fear of voicing opinions or concerns represents classic interference under National Labor Relations Board precedence.
Other passages describe a culture of constant monitoring, where employees undergo a never-ending 360-degree-style review in which every metric that can be used to grade performance is, in fact, used. The metrics in turn drive what is described as a yearly staff trimming called an Organization Level Review where employees with the lowest ranks—in part based on the Anytime Feedback Rule—lose their jobs.
But with any data-driven metric, there is a danger that certain protected classes (like the managerial class, for instance) may become relatively insulated, which raises the specter of disparate impact discrimination. While no one accuses Amazon of discrimination, the New York Times article highlighted women and leave-taking employees as two groups disproportionately affected by negative performance reviews.
From an employment law perspective, Amazon’s focus on big data and performance at any expense sounds more and more like an employment law nightmare. But the company is, of course, an at-will employer. Its employees are free to abide by the data-driven performance demands of the company. Or not.
This “purposeful Darwinism,” as a former Amazon human resources executive put it, may either become the next disparate impact discrimination class action or a revolutionary way to run a business. But consumers may be the ultimate judges of Amazon’s formula for success. And at the moment, Amazon remains the world’s biggest and richest retailer, both online and off.
