Bates v. UPS

After 10 years of hard fought litigation, including an appeal to the Ninth Circuit, DRA and Co-counsel Schneider Wallace Cottrell Brayton Konecky LLP reached a settlement with UPS on the remaining issue in this class action case. The settlement resolves the question of whether UPS may use the Department of Transportation hearing standard as a threshold qualification for driving vehicles at the company weighing 10,000 pounds or less.

As a compromise to resolve this difficult issue the parties agreed to form an expert panel to develop a Hearing Protocol. The expert panel developed the Protocol as an alternative qualification standard for employees who cannot pass the DOT hearing standard. The Protocol establishes a more lenient hearing standard for individuals seeking to drive UPS vehicles weighing less than 10,000 pounds. Under the Protocol, employees unable to pass the DOT hearing standard will be provided with hearing screening by a licensed or certified audiologist in connection with their application for an on-road driving position. All Hearing Protocol screening will involve audiometric testing. Under the Protocol:

The candidate must demonstrate, at either 1 kHz or 2 kHz, a binaural sound field threshold of 45 dB HL or better (ANSI-1989), with or without hearing aids, as measured by a licensed or certified audiologist following relevant and current ANSI standards.

If a class member obtains a driving position under the Protocol, hearing examinations will be performed annually for employees with progressive hearing loss or more frequently if changes in the employee’s condition indicate the need. Examinations will occur every two years for employees with stable hearing loss.

UPS agreed to implement the Hearing Protocol beginning on June 29, 2009.

If you are interested in driving vehicles under 10,000 pounds, but cannot pass the hearing portion of the DOT test, you may still be able to obtain a driving position if you can pass the Hearing Protocol Standard. If you are interested, you should begin investigating the availability of jobs at your UPS facility driving vehicles under 10,000 pounds. You can do so by asking your supervisor or monitoring the bid lists for driving jobs at your facility.

As part of the settlement, UPS will provide on-road testing and driver training to all individuals who meet all other qualification requirements and pass the alternative hearing standard in under 10,000 pound package cars. All UPS managers providing on-road testing and driving training to individuals who pass the Hearing Protocol will participate in training developed to assist in more effective communication with hearing-impaired drivers and driver applicants.