UPS pay cut of driv­ers side­lined with med­i­cal is­sues is il­le­gal, judge says

The Kansas City Star - - Business - BY MARK DAVIS mdavis@kc­star.com Mark Davis | 816-234-4372, @md­kc­star

Five years ago, truck driver Thomas Diebold was of­fered work on a Kansas City, Kan., dock when a mi­nor stroke kept him off the road for a while.

It meant earn­ing 10 per­cent less than other dock work­ers, but only be­cause Diebold had a med­i­cal is­sue. He’d have qual­i­fied for the same pay as other dock work­ers had he been side­lined for any other rea­son — even driv­ing while in­tox­i­cated.

Diebold, now re­tired, was a Team­ster and drove for UPS Ground Freight. He com­plained to the U.S. Equal Em­ploy­ment Op­por­tu­nity Com­mis­sion.

While in­ves­ti­gat­ing his com­plaint, gov­ern­ment at­tor­neys learned that UPS had in­serted its pol­icy into a new con­tract with the Team­sters union, signed in early 2014, said Grant Doty, EEOC trial at­tor­ney.

The EEOC filed a dis­abil­ity dis­crim­i­na­tion law­suit against UPS and the Team­sters’ na­tional ne­go­ti­at­ing com­mit­tee.

UPS and the union have fought the law­suit for years. This was part of their ne­go­ti­ated con­tract, UPS ar­gued in court.

In court fil­ings, UPS at­tor­neys pointed out that the con­tract al­lows the driver side­lined by med­i­cal rea­sons to re­place, or “bump,” one of the dock work­ers. It en­sured he’d have work, though they ac­knowl­edged it would be at the 90 per­cent pay rate.

In con­trast, a driver side­lined for a DUI or other non-med­i­cal rea­sons couldn’t bump any­one. He’d earn 100 per­cent pay but might not get any work if the dock didn’t need ad­di­tional help.

“That’s not the point. That doesn’t make it le­gal,” Doty said.

A fed­eral judge has agreed.

“There are no cir­cum­stances un­der which pay­ing a dis­abled driver 90 per­cent of what oth­ers earn is le­gal un­der” the Amer­i­cans with Dis­abil­i­ties Act, Chief U.S. Dis­trict Judge Julie A. Robin­son said in a Nov. 1 or­der.

Robin­son was rul­ing on UPS’ ef­fort to over­turn her pre­vi­ous de­ci­sion in the case. It had pro­hib­ited the com­pany from shav­ing pay of dis­abled driv­ers it trans­fers to other jobs and banned UPS and the Team­sters from ne­go­ti­at­ing la­bor deals that in­cluded such terms.

She has not yet ruled on Diebold’s com­plaint about his spe­cific case.

UPS is ap­peal­ing the case to the 10th Cir­cuit Court of Ap­peals.

In an emailed state­ment, UPS said it has “ro­bust poli­cies re­gard­ing the ac­com­mo­da­tion of dis­abil­i­ties un­der the Amer­i­cans with Dis­abil­i­ties Act” and state laws. “While UPS dis­agrees with the EEOC’s po­si­tion and the Court’s opin­ion, the com­pany has none­the­less agreed vol­un­tar­ily to mod­ify its prac­tice to ad­dress the EEOC’s or the Court’s con­cern.”

Of­fi­cials for the Team­sters ne­go­ti­at­ing com­mit­tee de­clined to com­ment.

Robin­son’s rul­ing came the same day that UPS Freight be­gan to “empty” its net­work of freight. It has been re­fus­ing new cargo from com­mer­cial ship­pers in an­tic­i­pa­tion of a Team­sters strike.

Work­ers re­jected one con­tract of­fer. Any dis­rup­tion is not ex­pected to in­ter­fere with UPS con­sumer pack­age de­liv­er­ies.

Con­tin­ued ne­go­ti­a­tions have led to a vote Fri­day, Nov. 9, on what UPS calls its “last, best and fi­nal” of­fer to the union. A 30day ex­ten­sion of the cur­rent agree­ment ex­pires Mon­day, and the union has told mem­bers there would be a strike if they re­ject the of­fer.

UPS

A fed­eral dis­crim­i­na­tion case against UPS Ground Freight grew out of com­plaints by a Kansas City, Kan., driver who was side­lined tem­po­rar­ily by med­i­cal is­sues.

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