Amazon.com Inc. general counsel David Zapolsky seems to have dropped a lit match into a puddle of gasoline.

The tech giant's firing of Staten Island warehouse employee and protest organizer Chris Smalls had already sparked controversy. But the situation exploded when reports surfaced, based on leaked notes from an internal meeting, that Zapolsky had bad-mouthed Smalls while cooking up a plan to bolster Amazon's public relations situation.  

"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 reportedly stated. 

He added, "We should spend the first part of our response strongly laying out the case for why the organizer's conduct was immoral, unacceptable, and arguably illegal, in detail, and only then follow with our usual talking points about worker safety. Make him the most interesting part of the story, and if possible make him the face of the entire union/organizing movement."

It was not known whether Smalls has an attorney or if he is pursuing legal action against Amazon. But Smalls, who is black, appears to not only have a case for unlawful termination and retaliation, but also a potential claim for race discrimination.

That's according to employment lawyer Carolyn Wheeler, senior counsel at Katz, Marshall & Banks in Washington, D.C. She formerly served for 25 years as an assistant general counsel for the Equal Employment Opportunity Commission.

"Well, they really stepped in it," Wheeler said Monday in an interview. "They just handled it 100% the wrong way by firing him." 

Amazon has stated that Smalls was fired because he violated the company's 14-day quarantine policy by returning to work after coming into contact with a co-worker who tested positive for COVID-19.

Smalls has asserted in a written statement that Amazon had not quarantined other employees when he was on the job and believes that he was targeted for speaking out about unsafe working conditions during the novel coronavirus outbreak. 

When asked whether other employees have been fired for violating the same quarantine policy, an Amazon spokeswoman provided a statement asserting, in part, that Smalls was "terminated … for putting the health and safety of others at risk and violations of his terms of his employment." 

But she did not answer the question, which could be central to any potential claims that Smalls brings against Amazon. 

"What any employer, not just Amazon, would have to prove to show that this wasn't in retaliation is that they're firing everybody who disobeys any order they give about reporting symptoms, or staying home or social distancing," Wheeler said. "I just doubt that they [Amazon] could show that. The timing just makes it incredibly suspicious." 

New York-based employment lawyer Davida Perry, co-founder and managing partner at Schwartz Perry & Heller, noted that Smalls could have difficulty proving a retaliation claim under New York's relatively narrow whistleblower law.

"New York doesn't have a very strong whistleblower law," Perry said. "When I get these calls it's always someone that's complaining about something that makes the hair on the back of my neck stand up. But finding that it's an actual legal violation has always been a challenge." 

Occupational Safety and Health Administration regulations require employers to provide a safe workplace, but it's not entirely clear whether that would apply to Smalls' situation. 

"This is a brand new reality for us—the need to keep things clean and safe and masks and gloves and distance and all of that," Perry said. "There may be something in an OSHA regulation, but as a whistleblower he'd have to demonstrate that he was complaining about an actual legal violation, not a suggestion or a recommendation."

On the evening of Smalls' March 30 termination, New York Attorney General Letitia James criticized Amazon's actions as "disgraceful," "immoral and inhumane," and called for the National Labor Relations Board to investigate the situation, while she considered "all legal options" at her disposal. 

Days later, on April 2, Vice News reported that it had obtained Zapolsky's now-infamous leaked notes from a meeting of Amazon leadership, including CEO Jeff Bezos. Amazon has declined to comment on the authenticity of the report. 

But Zapolsky issued the following statement: "My comments were personal and emotional. 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."  

Wheeler dismissed Zapolsky's statement as "absurd" and a "non-apology." She said his comments in the meeting notes, assuming that the notes can be verified, will "give fuel to Mr. Smalls' lawyers to say, 'Let's just look at who else was fired and is there not only a retaliation aspect to this but a racial aspect?'

"You could get into a really ugly, in-depth study of disparate discipline affecting African Americans or other minorities more than white workers," Wheeler said. 

She added, "All because the lawyer makes a stupid, cover-up kind of statement about how we can use this guy's persona against him. It's one of the most ignorant things I've ever seen a company counsel say." 

Corporate Counsel reached out to other law firms for comment, but they said they count Amazon as a client.

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