Since the onset of the pandemic, labor and employment litigation has been on the rise. Now, over 1,300 lawsuits—and counting—have been filed against employers in the U.S. with workplace safety often at the center of the claims. Recently, a California employee of the United Parcel Service (UPS) filed a proposed class action against the courier, alleging a pattern and practice of failing to maintain safe work conditions that increased COVID-19 exposure among its workers. The case, which was subsequently removed from state court to a court of federal jurisdiction, calls into question the workplace safety of what is inarguably an essential service during the public health crisis.
Allegations Against UPS
On October 30, 2020, plaintiff Desdnie Hess, filed a complaint on behalf of herself and other proposed class members in California’s Alameda County Superior Court against her former employer, UPS. The plaintiff, a Local Sort Supervisor at UPS’s distribution center in Santa Maria, California, alleges that UPS failed to provide basic PPE or implement social distancing programs—despite employees working in close proximity within the warehouse and interacting with the public during deliveries. The plaintiff alleges that at least three employees at the Santa Maria location had contracted COVID-19 and that the company continues to put its employees, customers, and the public at risk.
Specifically, the plaintiff alleges that UPS “repeatedly ignored” social distancing guidelines for its 300 employees at the Santa Maria facility, resulting in the plaintiff and others typically working no more than two feet apart from each other. The plaintiff’s schedule became busier during the pandemic, resulting in an increase in her contact with others. She claims that UPS also failed to adequately sanitize its facilities, particularly surfaces that are routinely touched without gloves, such as pallets and packages. Further, the company did not provide hand sanitizer to the warehouse employees. Masks were not given out until May, although the inventory of masks would quickly deplete.
The plaintiff also alleges that UPS did not modify its ventilation systems nor implement any other programs, such as temperature checks or symptom screening, to prevent the spread of the virus. Upon the infection of at least three of its employees, the plaintiff states that UPS did not conduct any contact tracing nor notify other employees that they should quarantine or get tested.
Public Health Claims
The plaintiff alleges that UPS’s actions are in violation of public health guidelines, the California Labor Code, as well as the guidelines promulgated by OSHA. The plaintiff sets forth a cause of action under the California Civil Code, alleging that UPS’s conduct constitutes a public nuisance, as defined under the law, because it “caused a considerable number of persons to suffer increased exposures and risks of exposure to COVID-19 virus,” including employees, customers, and other persons that have come in contact or reside with them. The plaintiff also alleges violations of California’s Unfair Competition Law, in that UPS’s failure to adhere to California’s Labor Code and OSHA regulations constituted unfair and unlawful business practices from which the plaintiff and the proposed class suffered. UPS engaged in said conduct allegedly to gain an advantage over other companies by avoiding the costs associated with adhering to the applicable codes and regulations.
In light of UPS’s multiple facilities throughout California allegedly placing their employees at risk as well, the plaintiff proposes a class action consisting of UPS’s former and current employees— numbering in the thousands— as it would be impracticable to file individual claims. Among other requests for relief, the plaintiff seeks reimbursement of business expenses, monetary damages, and injunctive relief enjoining UPS from continuing to engage in unsafe practices.
UPS’s Request for Removal
On January 6, 2021, UPS filed a Notice of Removal in the United States District Court for the Northern District of California, seeking to transfer the case to its court, in part, on the basis of diversity jurisdiction. UPS is an Ohio corporation with a principal place of business in Atlanta, Georgia and the matter in controversy easily exceeds $75,000. UPS estimates that the proposed class would include at least 4,000 members across its 19 California facilities and that the amount in controversy would exceed $5 million, as required under the Class Action Fairness Act for removal. The facts set forth in UPS’s request for removal help gauge the breadth of the proposed class action.
The Future of Workplace Safety Suits
As this proposed class action is still in its infancy, the viability of the plaintiff’s claims remains to be seen. But if past employment litigation is any indicator, it is likely that the lawsuit will cost UPS a substantial sum if it is proven the company failed to provide a safe workplace. Interestingly, the plaintiff’s strongest claim may lay in its public nuisance allegations.
Typically, with certain exceptions, workers’ compensation laws are intended to be an employee’s sole means of recourse if injured on the job, thereby protecting the employer from lawsuits. But attorneys have found ways around this immunity by filing causes of action alleging public and private nuisances directly against the employer. Although monetary damages are generally not paid out to individual employees, a nuisance claim can cost a company money if the court grants a plaintiff’s request for injunctive relief. This could result in an order for the company to shut down until it brings operations into compliance. The development of employment law in this context will be interesting as the UPS lawsuit continues.