Amazon Weighs Labor Risk When Probing Employee Misconduct

Amazon.com Inc. is weighing whether to investigate allegations of internal misconduct due to the risk of violating labor laws, a senior company lawyer said.

“More aggression from the” National Labor Relations Board “particularly impacts internal investigations where it could theoretically touch on protected concerted activity,” said Lee Langston, Amazon’s corporate counsel for business conduct and ethics, during a legal conference Wednesday.

The Biden administration labor board’s expanded interpretation of what types of employer behavior stifle employees’ workplace rights may prevent Amazon from even starting an internal review, said Langston, who oversees internal investigations for the company’s one million North American employees.

“That’s something that definitely comes up, even in deciding whether to investigate something now at the very early stage is, ‘Is this a topic that even if this is something that violates our internal policies, do we want to take on the labor risk associated with this?’” Langston said at the American Bar Association event in San Francisco.

His comments come as Amazon last month responded to an NLRB regional office complaint accusing the online retail giant of violating labor law by alleging the agency is unconstitutional.

During a panel at the ABA’s annual white collar crime conference, Langston described NLRB enforcement as one of several challenges Amazon faces due to conflicts between government and internal investigations.

The interplay between inconsistent laws and policies, depending on jurisdiction, is another major issue for the transnational corporation, he said. For instance, a recently enacted law in New York that bars employers from reviewing their workers’ social media accounts may be at odds with the Justice Department’s heightened expectations for companies to hand over evidence from employee smartphone communications.

The New York law, which takes effect March 12, “obviously creates a problem when DOJ is saying you need to make sure you’re imaging and collecting people’s phones,” said Langston, a former DOJ supervisor. “It creates an issue where, you’re like, ‘did you ever use your personal phone for business?’ And all they have to do is go, ‘No.’”

“We’re struggling with how to deal with that case where, particularly if the fraud or the corruption risk is from an outside party, you don’t necessarily have the ability to pressure test that,” he added.

As part of a broader suite of corporate crime policy shifts the past few years, the department has been pressuring companies under investigation to turn in employee messages on apps like WhatsApp and Signal, which often contain critical evidence to prove criminal intent. Companies have responded by considering whether to prohibit employees from discussing work on such encrypted apps on their personal devices.

Asked if Amazon has a policy against conducting work over Signal, Langston responded: “We do not, but it is something we struggle with.”