Law360, San Francisco (April 29, 2021, 5:14 PM EDT) -- UPS urged a California federal judge Thursday to toss a former employee's proposed class action accusing it of systematically endangering workers' health and safety by leaving them vulnerable to exposure to COVID-19, arguing that the ex-employee's claims belong before regulators, not a judge.
United Parcel Service Inc. told U.S. District Judge William Alsup during a remote hearing Thursday that former employee Desdnie Hess' claims should be nixed, arguing that the dispute is really a workers' compensation issue that should be referred to the state regulator.
But Judge Alsup expressed concern that referring the case to California's Department of Industrial Relations' Division of Occupational Safety and Health of California, known as Cal/OSHA, might mean that Hess wouldn't be able to recover damages for the emotional distress she alleges she suffered as a result of UPS' purportedly lax safety protections.
"You're saying, 'Go see OSHA,' but OSHA's not in a position to give money out," Judge Alsup said.
But UPS' counsel argued that Hess' alleged psychiatric injury is governed by the workers' compensation regime.
Hess, a Santa Barbara resident who worked as a supervisor for UPS from October 2019 until she quit in May 2020, filed suit in California state court in October, before it was removed to federal court shortly thereafter.
Hess worked at a UPS distribution center in Santa Maria and alleges in her complaint that "physical distancing simply does not exist" there.
UPS poses a public nuisance, engages in unfair competition and fails to reimburse employees for masks and other equipment, alleges Hess, who is seeking declaratory relief and monetary damages.
Hess isn't the only one concerned about UPS' pandemic response.
In January, Cal/OSHA issued a COVID-19-related citation to UPS following a complaint and subsequent inspection of its Richmond, California, facility.
Cal/OSHA fined UPS $7,650 for a serious violation after finding that UPS had failed to ensure employees used face coverings and maintained physical distancing.
At the time of the inspection, UPS also had not constructed barriers, such as Plexiglas shields, to separate customers and employees at the facility's public-facing customer center, according to Cal/OSHA.
At Thursday's hearing, UPS' attorney, Rachel S. Brass of Gibson Dunn & Crutcher LLP, acknowledged the company's run-in with Cal/OSHA, telling the judge, "As we know, Cal/OSHA has been investigating and has cited UPS."
But Brass said Hess' allegations don't belong in court.
Brass said Hess "is asking you to create a new cause of action that has never been recognized in the broad and enthusiastic enforcement of workers' compensation exclusivity by the California Supreme Court."
The workers' compensation laws provide a clear remedy as an employee and "a clear immunity as an employer to alternative forms of relief for those types of workplace injuries."
Hess' attorney, Kyle G. Bates of Schneider Wallace Cottrell Konecky LLP, said Hess has a right to have her suit adjudicated in court, saying her injuries fall outside the workers' compensation regime.
Bates urged Judge Alsup not to dismiss the claims, arguing that the case "is about an unsafe premises that defendant allowed to exist by virtue of its noncompliance with the labor code and with applicable regulations, not a discrete injury like an employee falling down the stairs at work."
Bates said that while Hess, due to her status as a former employee, cannot obtain injunctive relief, "money damages are on the table."
In a similar proposed class action brought against UPS in Kentucky federal court, the president of Teamsters Local 2727 accused UPS of rampant health and safety failings, including "squalid conditions" at a Louisville facility, that increased workers' risk of exposure to COVID-19. There, too, UPS argued that the dispute belongs before regulators and that the court doesn't have jurisdiction.
A UPS spokesperson declined to comment on the pending litigation Thursday, but told Law360 in an email, "The health and safety of our employees is extremely important to us. "
The UPS spokesperson said the company is taking steps to keep its employees safe, including by modifying its operating procedures to maintain social distance, distributing disinfectant, requiring face coverings and providing personal protective equipment to employees. UPS also provides up to 10 days of compensation for employees who are diagnosed with the virus or required to quarantine, the spokesperson said.
Counsel for the parties did not immediately respond to requests for comment Thursday.
Desdnie Hess is represented by Kyle G. Bates, Carolyn Hunt Cottrell and Kristabel Sandoval of Schneider Wallace Cottrell Konecky LLP.
United Parcel Service is represented by Rachel S. Brass and Joseph R. Rose of Gibson Dunn & Crutcher LLP.
The case is Desdnie Hess v. United Parcel Service Inc., case number 3:21-cv-00093, in the U.S. District Court for the Northern District of California.
--Additional reporting by Tim Ryan. Editing by Kelly Duncan.
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