UPS Challenges The Class Action Status
Of ADA Suit Brought By Scott & Scott
In an effort to get this class action thrown out before a new ADA law become effective on January 1, UPS is trying to decertify this as a class action lawsuit.
SEE LINK
ADA (American with Disabilities Act) mandates that a company make "reasonable accommodations" to employees unable to continue at their current job because of injury or illness.This case is a landmark case in employment law that may well interprete the current and incoming ADA laws. The central issue is UPS's unwritten policy of "100% cured" before injured or ill UPSers can return to work. Few workers receive job reassignment or any accommodation to their job. This appears to be in complete disregard to the law.
UPS's lawyer admits there are tens of thousands of (current and former) UPSers involved. He claims that there is billions of dollars involved. Does that mean that when it is expensive, companies don't have to follow the law? How difficult is it for workers stripped of their job?
It is of note that former Supreme Court Justice Sandra Day O'Connor is one of the judges hearing the case. UPS's lead attorney Mark A. Perry clerked for O'Connor in '93-'94. Justice O'Connor also wrote the majority opinion in Murphy v. UPS where UPS prevailed. Murphy v. UPS set an importent precident for ADA cases and is cited as a reason that the U.S. Congress updated the ADA law. Reasonable people would question whether O'Connor should recuse herself.
Co-council for UPS is Eugene Scalia, the son of O'Connor's former Supreme Court colleague, Justice Antonin Scalia. UPS has brought significant clout to this case which indicates how important it is (in the company's eyes) not to make accomodations for injured employees. Tens of thousands of employees who are too injured or too ill to continue working at their jobs, yet this somehow flys under the radar of the mass media.
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FOLLOWING THE MONEY
UPS Whiteboard Music
Is NABER the only ones that think it's weird that the music behind the Whiteboard commercials is the intro to a song by the musical group, "The Postal Service"? The song is "Such Great Heights" and is available on Itunes.
Americans With Disabilities Act (ADA) Coverage Increases
In cases brought to enforce the 1990 ADA law, disabilities has been narrowly defined by the courts. Diabetes and hypertension (high blood pressure) had not been covered even though it disqualified individuals from certain jobs. UPS had been instrumental in obtaining this narrow interpretation by taking Murphy v. UPS to the U.S. Supreme Court.
Briefly, that decision allowed UPS to fire a mechanic because of his inability to obtain a DOT physical card, because of hypertension. UPS further argued that because his condition did not have a major effect on his daily life, Murphy was not covered by ADA. Other court decisions similarly decided that diabetes was not a disability.
Many of you are aware that insulin dependent diabetes are not allowed DOT cards to drive and UPS terminates employment of those drivers. They do not make reasonable accommodations to move individuals into appropriate jobs. Years ago, however, UPS did find other positions for these UPSers. Many were long-time employees and near retirement age.
This injustice is about to be remedied. In January, the ADA Amendment Act (ADAAA) will become law. ADAAA will reverse Murphy v. UPS and other similar cases. Congress will define what they intended in the original law that the courts modified. “Majority Leader Steny Hoyer (D-Md.) said that because of Supreme Court decisions that interpreted the ADA's coverage in an unduly restrictive manner, the full promise of the 18-year-old legislation has not been realized. “Our intent was to be inclusive; civil rights bills are meant to be interpreted broadly,” said Hoyer, who was a key player in enactment of the original ADA in 1990.” (SOURCE: http://subscript.bna.com/pic2/hr2pic.nsf/id/BNAP-7JRRQE
Since previous Supreme Court decisions are to be reversed, it would seem that this law is retroactive to the effective date of the original ADA law. It remains to be seen how this will be played out in court. Seek your own legal council to determine your rights under the new law.
Hopefully, this new law will end the shameful termination of employees who are fully capable of working but have the misfortune of illnesses that don't allow them to continue to drive professionally.
Former UPS worker awarded $2.63 million
A federal jury last month to award Jones a whopping $2.63 million in damages, including $2 million in punitive damages.
“We were able to show the outrageous and brazen fashion in which UPS retaliated against Mr. Jones through evidence of, among other things, repeatedly and admittedly sabotaging his efforts to return to work after he filed a workers’ compensation claim,” one of Jones’ attorneys, Frederic D. Deay II, said in an e-mail." SOURCE
The United Parcel Service Inc. said it’s cooperating with the U.S. Justice
Department in an antitrust investigation of its policies on the use of shipping consultants.
“We are going to cooperate fully with their inquiry,” UPS spokeswoman Susan Rosenberg said about the Justice Department investigation in a telephone interview today. Department spokeswoman Gina Talamona declined to comment on the inquiry.
The probe was disclosed in a lawsuit filed by Portland, Oregon-based AFMS LLC, a privately held shipping consultant, which alleges that UPS and Federal Express Corp. conspired to exclude third-party shipping consultants.
Rosenberg said that FedEx and UPS compete aggressively and that any assertion that they conspired was "a bit outrageous."
UPS Cooperating With U.S. Antitrust Probe Into Shipping-Consultants Policy
Our Local 705/UPS contract made gains where others fell short, however, the fight did not end there. Although UPS contractually agreed to the terms and signed the contract with us, they seem to always try to take back. In this case, for instance, the ink on our new contract wasn’t even dry when they tried to raise the retirees’ insurance premiums from $50 to as much as $480 a month.
The case in reference is about the St. Louis Feeder (Earth City, Mo) driver who refused to pull a trailer without working taillights and side marker lights was John Youngermann v. United Parcel Service. We won that case before OSHA but UPS appealed. Because of the appeal, a hearing was held before Administrative Law Judge Clement Kennington of the U. S. Department of Labor last fall.
Judge Kennington issued his decision finding that UPS unlawfully retaliated against John Youngermann by firing him because he refused to drive without taillights, all required side marker lights and both working headlamps. Judge Kennington ordered the following reliif:
A. Back pay of $2,122, plus interest (John's firing had been reduced to a suspension).
C. Damages for mental pain and emotional distress in the amount of $5,000;
D. Punitive Damages of $100,000;
E. Attorney fees;
F. Posting of a notice of the decision and a notice to employees; and
G. Expungement of John's work record.
In awarding $100,000 in punitive damages, Judge Kennington said the following:
"I find punitive damages appropriate in this case. First, Respondent [UPS} acted with callous disregard for Complainant's rights when it continuuosly instructed him to drive a vehicle in violation of the regulations. In addition, Respondent attempted to convince Complaiannt through misinformation that it was in fact not a violation to drive the truck in its condition. At the very least, Respondent showed a complete disregard for the safety of Complainant [John Youngermann] and the public by continuously instructing Complainant to drive The record in this case shows Respondent [UPS] repeatedly ordered Complainant to drive the truck after he repeatedly stated he did not feel it was legal or safe."
If anyone would like a copy of the decision, I am happy to provide.
Regards,
Paul O. Taylor
Truckers Justice Center
900 West 128th Street, Suite 104
Burnsville, MN 55337
Tel. No. 651-454-5800
Driver awarded $100,000 in punitive damages from UPS after being firied by UPS for refusing to drive unsafe equipment
Local 705 acted immediately with a letter to all retirees assuring them the
Local would do everything in it’s power and without delay assisted the 705 retirees
in filing a class action lawsuit against UPS for their singling out of 705 retirees in raising their monthly rates. No other retiree in the country received a notice that their insurance premiums were increasing. UPS claimed they had a verbal agreement with the International not to raise those rates. They made the same agreement with us in negotiations. It was asked at the table if there would be any changes and we were told ‘no changes’. Attorneys Stephen Rosenblat and Pat Ryan of Baum Sigman Auerbach & Neuman, Ltd., and Jeff Gilbert of Johnson Jones Snelling Gilbert and Davis, P.C. were hired to file the lawsuit in the United States District Court. “We did think we had a good case from the beginning”, said Attorney Steve Rosenblat. “The SPD said that costs above $6,250 would be shared equally by collecting additional contributions from all UPS retirees in the Plan. UPS imposed a higher contribution rate only on the 705 retirees.” The Judge agreed. In a swift decision, the Court found in favor of the 705 retirees: UPS violated the SPD by collecting additional contributions from Local 705 retirees only, even though everyone’s costs were above $6,250. The ruling stated the defendants’ interpretation of “shared equally” contradicts the plain language of the Plan and is therefore arbitrary and capricious. UPS appealed and in the United States Court of Appeals they received this ruling: Local 705 retirees have a right to rely on the language, which unambiguously states that UPS must, if it collects additional contributions, collect them from all IBT retirees. UPS was ordered to credit monies to the retirees along with 5% interest; they were responsible for all court costs and all attorneys’ fees. .
Local 705 Wins Retiree Lawsuit aginst UPS
February 1, 2011 7:45 AM ET
UPS today announced adjusted diluted earnings per share of $1.08 for the fourth quarter of 2010, a 44% improvement over the prior-year period. Global revenue grew 8.4%, generating $1.8 billion in adjusted operating profit, a 40% increase.
On a reported basis, diluted earnings per share totaled $1.11, a 48% increase over the $0.75 reported for the same period last year. During the quarter, UPS recorded a net after-tax gain of $32 million related to the sale of certain non-core business units.
For the full year 2010, the company delivered 3.9 billion packages, an average of 15.6 million per day. Revenue increased 9.4% to $49.5 billion. Adjusted operating profit soared 47% to $5.8 billion with the International and Supply Chain & Freight segments achieving record-setting levels, generating $1.9 billion and $577 million, respectively. On a reported basis, operating profit for the year was $5.9 billion, up 55%. Adjusted diluted earnings per share were $3.56, up 54%, and $3.48 on a reported basis, up 63%.
“UPS again demonstrated exceptional earnings growth by leveraging the strength of its network to provide solutions for customers,” said Scott Davis, UPS chairman and CEO. “I’m encouraged by the opportunities we see in 2011 as UPS continues to expand into emerging markets while demonstrating the power of the logistics capabilities we’ve built worldwide.”
Based on expectations for 2011, UPS is providing annual guidance for diluted earnings per share to a range of $4.12-to-$4.35, an increase of 16-to-22% over 2010 adjusted results. This would exceed the peak earnings level recorded in 2007.
UPS 4th Quarter Earnings Surge 44%; 2011 EPS Expected to Set All-Time High
United Parcel Service Inc., Atlanta, contributed $3.2 billion in cash to its U.S. pension plans in the last two months, said Norman Black, UPS spokesman. The company contributed $1.2 billion in January and $2 billion in December. As a result of the contributions, each of the company's U.S. defined benefit pension plans is now more than 100% funded, Mr. Black said. The amount of the overfunding was unavailable. The new funding “will substantially reduce contributions in the years to come,” Kurt P. Kuehn, CFO, treasurer and senior vice president, said Tuesday in a conference call on the company's financial results. UPS didn't disclose its current pension assets and liabilities. “UPS like most companies with defined benefit plans will experience higher pension expense in 2011, as a result of lower discount rates and the amortization of the 2008 market losses,” Mr. Kuehn said in the transcript. UPS didn't disclose the expected pension expense for this year. “The benefits of our recent pension contributions will help offset the impact but not totally eliminate it,” he added in the transcript. In December, UPS contributed $2 billion to its pension plans, financing the funding by selling 10- and 30-year notes, Mr. Black said. Given low levels of interest rates, we felt it was financially prudent to issue debt to prefund our pension plans,” Mr. Kuehn said in the transcript. UPS' U.S. plans had $15.3 billion in assets and $17.7 billion in liabilities, while its non-U.S. plans had $481 million in assets and $575 million in liabilities, all as of Dec. 31, 2009, according to its most recent 10-K, filed Feb. 26, 2010.
UPS wraps up full funding with $3.2 billion contribution
