COCAINE USER HIDES BEHIND TONIC WATER EXCUSE AND WINS!
This unemployment insurance case will probably make you angry when you read it. At a time in the history of the
In this particular Illinois Department of Employment Security unemployment insurance benefits case, a claimant was a temporary employee originally. For purposes of this article, let’s identify the Claimant as Mary and the Company as Smith Company.
Mary worked for Smith Company as a temporary employee. Mary knew that if she were ever invited to join the Company as a permanent employee, she would be required to have a drug test per company policy. This Company decided to invite Mary to join Smith Company as a permanent employee and they scheduled Mary for a drug test. Mary took the drug test, and she tested positive for cocaine. Mary denied ever using cocaine. She argued to Smith Company that the test results were a “false positive” because of some interaction with tonic water!
Smith Company didn’t buy Mary’s tonic water excuse, and they did not hire Mary as a permanent employee. In fact, they terminated her employment relationship with Smith Company. Mary filed for unemployment insurance benefits. Smith Company protested (claiming that Mary was discharged for misconduct connected with the work under Section 602A of the Illinois Unemployment Insurance Act).
At the unemployment insurance hearing, the Hearing Officer found that the drug test was performed by a reliable and independent laboratory. However, there was nothing in the Hearing record to support this finding by the Hearing Officer that the lab was reliable and independent. The Company produced no evidence or witnesses at the Hearing that the lab was reliable and independent, and that the test results were therefore valid.
However, the Hearing Officer still found for Smith Company and denied unemployment insurance benefits to Mary. Mary appealed that Hearing decision to the IDES Board of Review.
The IDES Board of Review reversed the decision of the Hearing Officer and found that Mary was not guilty of misconduct under Section 602A of the Act. The Board of Review found that Smith Company did not meet its legal burden of proof at the IDES hearing because Smith Company failed to have medical personnel available during the hearing to testify about the drug test, the test results, and other aspects about the lab and the validity of the test. So Mary’s silly tonic water defense was victorious!
Of course, Smith Company could have appealed further to Circuit Court and beyond if necessary, but in view of Smith Company’s clear failure to have the necessary witnesses at the hearing, appealing through the
Smith Company did not know that they should have had witnesses from the lab at the IDES hearing. Now they know.
If your Company is claiming misconduct because an employee failed a drug test, be sure you have the necessary witnesses and evidence to present at the unemployment insurance benefits hearing. Witnesses can testify by phone.
By
Nancy E. Joerg, Esq.
Senior Attorney and Shareholder
Wessels Sherman Joerg Liszka Laverty Seneczko P.C.
St. Charles ,
(630) 377-1554
***ATTENTION COACHING SESSIONS AVAILABLE!Coaching is available through any combination of in-person, telephone, or email support. Are you prepared to navigate the current job market? If you would like to increase your chances and give yourself a real chance to win the next position. I have developed a simple easy to use and affordable product http://www.mypocketapplication.com/Email me, or call Dennis Scherer for more information!630-571-6025
No comments:
Post a Comment