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  1. #1
    Join Date
    Apr 2012
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    8

    Default Getting Unemployment After Being Fired Over a Positive Drug Test

    My question involves unemployment benefits for the state of: Kansas

    *I was fired for a “positive” drug test and my unemployment was denied. I appealed it and was still denied. The appeal hearing was over the phone. When I started to explain the fact that my test wasn't positive according to Kansas statue, the referee stopped me and asked me about something else. I didn't worry too much about it, since one of the papers the D.O.L. sent me specifically mentioned this statue and told employers to read it and be aware of it. I figured the referee knew the law and would base her decision upon it. I received the determination and it stated that I was discharged for misconduct and I was denied. Now I need to send a letter to the Employment Security Board of Review. I want to make sure my letter is what they are looking for. Thanks for any help offered. This has been going on for over seven months now.
    *
    *
    Dear Board,
    *
    I am writing this letter to appeal the decision in regards to my unemployment benefits claim for the following reasons.
    *
    I was fired for testing positive for methamphetamine. K.S.A. 44-706 (b)(2) states that a positive chemical test shall mean a chemical result showing a concentration at or above the levels listed in K.S.A. 44-501, and amendments thereto, for the drugs or abuse listed therein. The level for a positive methamphetamine test is 500 ng/ml and specimen must also contain amphetamine at a concentration greater than or equal to 200 ng/ml. The Department of Transportation follows the same guidelines. My test result was 86 ng/ml for methamphetamine and negative for amphetamine, well below the concentration required for a positive test.
    *
    On March 02, 2009 I signed a Return To Work Agreement, which stated that if I tested positive for a substance for a one year period, I would be terminated. The test ***** ******* is claiming to be positive was collected Sept. 26, 2011, two and a half years after the Return To Work agreement was signed.
    *
    The employer has the burden of proving misconduct by a preponderance of the evidence. The alleged misconduct is based upon a drug test that does not meet the requirements necessary to be considered positive.
    *
    I acknowledged using drugs in the past, when not on the clock and away from work. By not using, possessing, or being under the influence I did not think I was placing my job in jeopardy. In National Gypsum Co. v. Kansas Employment Security Bd. of Review, 244 Kan. 678, 772 P.2d 786 (1989), an earlier case also dealing with drug testing, the employee had used drugs while off duty. The Kansas Supreme Court held that under K.S.A. 1988 Supp. 44-706(b)(1), off-duty drug use cannot be construed as a "willful or intentional failure to perform duties in a satisfactory manner." 244 Kan. at 687. To exclude a discharged employee from unemployment benefits for off-the-job misconduct, the off-duty misconduct must be work connected and reasonably related to the employer's business.

    Thanks for your time in this matter,
    ********* *********

  2. #2
    Join Date
    Mar 2012
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    602

    Default Re: Does This Letter Look Correct

    Is that DOL link on the web? I'd like to read it.

    Why are you not citing it in your appeal? If it's good stuff, give them a copy. It was because of two DOL unemployment insurance program letters that I was able to win a board of review. I cited them thinking the judge would read it, and the reason I cited it instead of providing a copy at the hearing was because I had been coached by an attorney type to "never quote the law to a judge." Well, when I read the decision when no mention of the DOL UIPL, I sent the entire two UIPLs (18 pages). When the board overturned, they used 8 of those pages in their new reasoning, so it may be persuasive and worth submitting.

    Also, you have no duty to incriminate yourself. Don't admit to using the drug. A postive test only means it was in your system. It in no way proves how it got there.

  3. #3
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    Sep 2005
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    75,910

    Default Re: Getting Unemployment After Being Fired Over a Positive Drug Test

    KSA 44-706(b)(2) describes drug test results that constitute "conclusive evidence of misconduct" and "prima facie evidence of conduct which is a violation of a duty or obligation reasonably owed to the employer as a condition of employment". The statute does not state that an employer cannot discipline an employee for having a positive drug test that demonstrates a lesser level of intoxication than the levels set forth in KSA 44-501 - but if you test at a lower level the test cannot be automatically deemed "conclusive evidence to prove misconduct".

    The threshold levels that constitute "conclusive evidence" of misconduct were defined by the legislature in response to the decision in National Gypsum.
    Quote Quoting Foos v. Terminix, 277 Kan. 687, 89 P. 3d 546 (2004)
    There, this court had held that an employee who tested positive for marijuana during an employer's drug test did not fit within the statute disqualifying employees for unemployment compensation benefits because the employer did not meet its burden to prove that the misconduct was "connected with the employee's work" under K.S.A. 1988 Supp. 44-706(b). In other words, the employer failed to prove that the off-the-job misconduct of marijuana use had an actual on-the-job impact. 244 Kan. at 687. The legislature reacted by creating a presumption that an employee had engaged in misconduct if impaired from alcohol or nonprescription drugs while working. The legislative history reveals that the intent was to allow employers to meet the requirements of the Drug-Free Workplace Act and implement drug-free workplace programs without having to pay employees benefits after they were fired for drug use revealed through drug testing. Minutes of the House Committee on Labor and Industry, March 1, 1990, Attachment 2.

    Thus, the legislature, when placing these same provisions into the Workers Compensation Act, was aware that workplace drug testing would occur with or without probable cause. Because testing might be mandated, either by the government or an employer's policy, testing might occur contemporaneously with the investigation of the events causing the worker's injury. Also, as in this case, the injury might require medical treatment and, as a result, testing might occur contemporaneously with investigation.
    You didn't test at high enough levels to trigger the statute's presumptions, but that doesn't mean that your employer cannot fire you "for good cause" over the positive result. It instead means that, if you were fired for the positive drug test and no other reason, your employer has to prove the on-the-job impact of your drug use in order for you to be denied unemployment.

    It would appear from what you wrote that your employer made more of an argument than, "We fired him because of this one positive drug test" - they apparently included reference to the prior positive drug test and the agreement that you would not test positive at work, and perhaps other issues as well. We also don't know the nature of the work and the dangers to yourself, to co-workers or to others that could result from on-the-job drug use. Also, whatever the drug level, your employer may have argued or presented evidence that you were showing signs of intoxication at work. I'm not going to argue that those factors exist or should be decisive in your case, but simply want to highlight that you must respond to all issues involved in the denial - you can't hang your hat on the statutory presumption and assume you'll win your appeal - and that we don't know the full context.

  4. #4
    Join Date
    Apr 2012
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    8

    Default Re: Getting Unemployment After Being Fired Over a Positive Drug Test

    Thanks for your replies, I sent the letter off but still waiting to hear. I am a machinist, I would only put myself in danger if I was impaired. There was no other signs of intoxication, my employer didn't claim there was any other reason for my being tested, other than randomly drawn.

    From the Kansas Department of Labor publication K-OA-P 02 (7-10) “Unemployment Insurance Appeals Hearing Instructions”

    Qualification: In order to “qualify” for unemployment insurance benefits, an employee must either have voluntarily quit for one of the “good cause” reasons set forth in the Act that is attributable to the work or employer or have been discharged under circumstances that do not meet the definition of “misconduct connected with the work” (K.S.A. 44-706 (a)(b)). “Qualification” is generally based on the reason the employee separated from his or her last employer.

    Misconduct Connected With the Work: “Misconduct connected with the work” is
    generally defined by statute to be a violation of a duty or obligation reasonably owed to the employer as a condition of employment (K.S.A. 44-706 (b)). Benefits will be paid to a terminated employee unless the termination was for reasons that meet that definition. There are several reasons for which an employee may be lawfully terminated that would not meet that definition. The burden of proving misconduct connected with the work is on the employer.

    Burden of Proof: The “Burden of Proof” is a term used to describe the standard that will be used to determine if a party has proven their case and which party bears the burden of proof. Who bears the burden of proof can change during the course of a hearing. However, as a general rule, the employer bears the burden of proof in a discharge case to show the employee was discharged for misconduct connected with the work and the employee bears the burden of proof in a voluntary quit case to show he or she had one of the twelve (12) reasons listed above for doing so.

    Intoxicants in the Workplace as Misconduct Connected with the Work: As in all discharge cases, the burden of proof is on the employer to prove the termination of employment was for misconduct connected with the work. In the case of termination for intoxicants in the workplace, further definitions of what constitutes misconduct connected with the work are found at K.S.A. 44-706 (b)(2).
    In general, it is considered “conclusive evidence” of misconduct connected with the work if the terminated employee was either “impaired by” or engaged in the “use of” drugs or alcohol “while working.” This means that, if the employer can prove the employee did use or was impaired by drugs or alcohol while working, the employee will be disqualified from receiving unemployment insurance benefits. The “possession” of either drugs or alcohol is considered “prima facie” evidence of misconduct connected with the work, which means the employee will likely be disqualified from receiving benefits, but could possibly still receive them if there is a good explanation for the possession.
    As noted above, the burden of proof is on the employer to establish the factual basis for a finding of misconduct connected with the work. “Evidence” to meet that burden could include either physical evidence of “use,” “impairment” or “possession,” such as admission by the employee, eyewitness accounts, physical symptoms, etc., or by legitimate, chemical screening test results. Evidence submitted should include all relevant documentation such as drug testing policies relied upon in the discharge and acknowledgement of its receipt, actual test results showing levels of concentration and confirmations, “chain of custody” papers linking the test sample to the test results, etc.

    “Chemical test” includes, but is not limited to, tests of urine, blood and saliva. A “positive” chemical test result, for purposes of proving misconduct connected with the work, must meet certain concentration levels. Tests involving “controlled substances” must equal or exceed concentration levels set forth in K.S.A. 44-501 and its amendments. “Breath test” concentration levels must equal or exceed 0.04 grams of alcohol per 210 liters of breath. Such a “positive” test is “conclusive” evidence of misconduct connected with the work.
    Chemical test results must meet several criteria before they are admissible into evidence to prove misconduct connected with the work.
    K.S.A. 44-501 sets the cutoff level at 500 ng/ml to be considered positive mine was 86 ng/ml which isn't a positive test so can't be used to prove misconduct connected with the work, the reason given for the denial. Along with the letter I enclosed a copy of the test results, with the concentration highlighted, a copy of the return to work agreement with the date highlighted, and a copy of the booklet that the appeal office had originally sent me stating that special requirements had to be met by the employer. I didn't want to seem like a smart ass, acting like they didn't know the law, but I assumed the lady that did the phone hearing would know it and that didn't work out so well. I don't see how it could still be denied the appeal judge was only interested in the fact that 2.5 years prior I had a positive test and given a second chance by means of the return to work agreement. She ignored the fact that this test was not positive, and the agreement I signed stated if I tested positive in the next year I would be terminated, and the fact that Kansas Statues states this doesn't qualify for misconduct related to work. This is my last option, unless I want to appeal it to district court. It showed that they owe me about 10K, when I filed my weekly claim.

  5. #5
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    Mar 2012
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    602

    Default Re: Getting Unemployment After Being Fired Over a Positive Drug Test

    Deputies and ALJs quite often have a bias. I've been through the process myself. I got a much better interpretations of the facts, application of the case law, and DOL interpretations and guidance, the higher up in the system I went until I did get benefits. Denying claimants at the early claim stages is a perfectly acceptible strategy for the unemployment people to use to reduce the drain on the unemployment fund because you have a remedy and that is to file an appeal.

    However, in my recent AZ analysis, 70% of cases that were denied at all administrative levels did result in granting of benefits or remanding for new hearings or redeterminations based on different sections of the regulations by the Court of Appeals, so it's my opinion based on those statistics that taking it to the Superior Court can be worth the effort.

    If you have the time, energy, and nothing better to do; keep going.

  6. #6
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    Apr 2012
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    8

    Default Re: Getting Unemployment After Being Fired Over a Positive Drug Test

    Well that's good news, the part about it getting better as you go up in the system. I really don't want to have to pursue it all the way to Kansas Supreme Court. I can understand it being denied initially, when I filed my claim I did not know the actual test result numbers, only that I had been told that it was positive. I doubt if the examiner looked at them, all they needed to see was positive. Then I received the paperwork from the Office of Appeals, which included a copy of the test results, and thought the matter would be cleared up then. It seems pretty well defined in the booklet, and statues, I don't even have to try to interpret it, or stretch it to fit my needs. I don't see how the examiner's decision was affirmed, other than the appeal judge made her decision based on her opinion, and not the law. I can't believe I had to wait six months for the appeal hearing, hopefully the review board will be a little quicker.

  7. #7
    Join Date
    Mar 2012
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    602

    Default Re: Getting Unemployment After Being Fired Over a Positive Drug Test

    It took me 11 months of appeals, and then another month to get benefits. It was 363 days before I saw my first nickle of UI money.

    I'm really not surprised. The denials you're getting can very well be because someone thinks you were asking for it, so they are making you pay by pushing you through the system.

    I quit my job after my employer cut my hours and took away my benefits because I was no longer full time. I got some really hurtful decisions making it sound like it was all my fault. In the final analysis, it was treated as though my employer discharged me, then offered me a new job, and the new job was then ruled unsuitable. I had solid proof of everything. There was no credibility to measure. The employer contested none of my statements or documentary evidence. They only ever said, "it was a voluntary quit, so benefits should be denied." There was just a bias in the system that I should have been glad to have "any" job, and I know for a fact, I'm only required to accept a "suitable" job, and it's up to me if I want to decline unsuitable regardless of what the ALJ or deputies personal feelings are.

    However, I did make the denials work for me. While I was getting nothing, I was fully eligible for $200/mo in food stamps, $15/mo as a low income electric customer, $640 in a LIHEAP grant, and a $10/mo discount through "life line" telephone service. All that stuff is googleable so you can try to stretch out your savings. Had I known that AZ was going to change the law when it did, I'd have been getting Medicaid, but AZ now requires a dependent child in the house to qualify since July. I thought I'd apply when I got sick, but had I known about the law change, I'd have applied in June.

  8. #8
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    Apr 2012
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    8

    Default Re: Getting Unemployment After Being Fired Over a Positive Drug Test

    My savings is just about stretched out. My wife has been catching all of the bills and groceries, except my house payment and its getting farther and farther behind. I am not having any luck finding a job, I am not sure which is better, having a seven year lapse in my employment history, or using my last job and having them tell my prospect that I was fired for a drug test. I know they are not supposed to release that info. but you know how that goes. I have tried both ways, but still no job. I know I have no one to blame but myself. I don't see how if an employer is not paying you minimum wage for 168 hours a week, they can force you to follow their policies in the privacy of your home, when not being compensated. They are violating the fair wage and standard act I would think. Hey- thanks for the heads up on some assistance- if something doesn't happen soon I am going to be forced to do something to survive.

  9. #9
    Join Date
    Jun 2006
    Location
    Massachusetts
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    17,945

    Default Re: Getting Unemployment After Being Fired Over a Positive Drug Test

    No, you will find nothing in the Fair Labor Standards Act that says you cannot be fired for illegal drug use, even if it was off the clock and not at work. Nor does anything in either Federal or Kansas law prohibit the employer from saying that you were fired for a positive drug test.

  10. #10
    Join Date
    Apr 2012
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    8

    Default Re: Getting Unemployment After Being Fired Over a Positive Drug Test

    Not that you cannot be fired for drug use, but by having to adhere to an employer's policy, which the employer benefits from, this time should be hours worked. From the DOL website regarding FLSA:
    "The time is hours worked even though the employee is allowed to leave the premises or the job site during such periods of inactivity. The employee is unable to use the time effectively for his or her own purposes. The employee's time belongs to and is controlled by the employer."
    From same website:
    "Ordinarily, an employee has time to engage in normal private activities such as sleeping, eating, entertaining, and other periods of complete freedom from all duties when he or she are able to leave workplace and use the time as he or she chooses." With a Drugfree Workplace Policy, and using common testing methods, an employee never has this "period of complete freedom for his or her own purposes."
    "The Supreme Court has stated that employees subject to the FLSA must be paid for all the time spent in "physical or mental exertion (whether burdensome or not) controlled or required by the employer and pursued necessarily and primarily for the benefit of the employer of his business."
    According to many employers maintaining a drug free workforce reduces accidents and improves safety while increasing productivity. Employers may receive discounted insurance for having a drug free workforce. Therefore an employer would benefit from drug free employees. If the employer requires employees to pass a drug test that monitors both on duty and off duty consumption employees would be owed for the entire time that is controlled by employer. Random testing gives an employer control over an employee's entire life, denying them all time of complete freedom for his or her own purpose. Minimum wage X 24 X 7.

    I didn't realize an employer could release the results of a drug test to anyone, thank you for pointing that out. I wonder why they had me sign a release for the lab to release the test to my employer? I guess they paid for it so now it belongs to them?

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