California Labor Code section 132a prohibits discrimination against employees for their industrial injuries… not news, I know.

In the recent panel case of Craig Gonsalves v. United Parcel Service, applicant sustained an injury while employed as a delivery driver for UPS and, in addition to his case-in-chief, which was resolved by Compromise and Release, made claims of three instances of discrimination on the part of the employer.

The first was that Mr. Gonsalves was fired in 1997.  This was for an unauthorized leave of absence – his treating physician had released him to work but Mr. Gonsalves decided not to deliver on his obligations to go back to work.  (Get it? Delivery driver… deliver…)  The workers’ compensation Judge found no support for a claim of discrimination in this instance, but found instead that “[i]t would appear … that that termination arose from necessities of doing business, and I find no evidence to the contrary.”

After applicant’s complaints, some based on additional medical evidence, defendant rescinded the termination notice, but then provided another termination notice because of the work restrictions imposed by his treating physician.  The work restrictions required applicant to work no more than eight hours a day for two weeks, and apparently UPS was unable to accommodate this as UPS drivers tend to work ten-hour days or more.

This time, the WCJ found UPS’s position less than persuasive, reasoning that UPS is a “large, national employer with considerable resources, and it is difficult to imagine how it would be a hardship, undue or otherwise, to relieve one driver after eight hours in each of ten working days.”  Finding no basis for a business necessity defense, the WCJ found that the employer did violate Labor Code section 132a in this instance.

Now, my dear beloved readers know that their humble blogger is never inclined to agree with any decision that disfavors the defense, but in this instance, the WCJ has a legitimate point.  What UPS should have done, and what it apparently did not do in this case, was show that such an accommodation would be an undue burden.

Basically, it would need to show that in a business model that requires 10-12 hour delivery routes, it would be impractical to assign a different driver for just 2-4 hours for 10 days, and UPS would understandably have a standing policy against such accommodations – everyone would want one.  After all, even UPS’s website says it delivers between 9 in the morning and 7 in the evening, so 20% of the packages would have to be delivered the next day or later based on a 9 to 5 schedule.

The Workers’ Compensation Appeals Board reversed, however, reasoning that: “[t]he WCJ’s assessment that ‘it is difficult to imagine how it would be a hardship, undue or otherwise, to relieve one driver after eight hours in each of ten working days’ is speculative and not supported by evidence.”

Additionally, applicant failed to carry his burden under Lauher to show that he was singled out for disparate treatment because of the industrial injury.  Presumably, Mr. Gonsalves would have to show that his co-worker Jack, who hurt his back on a camping trip, was provided an eight-hour delivery route.