Law requires more than allegations

By Catherine B. Leapheart

JEFFERSON CITY -- The Dec. 16 editorial, "Missouri needs law on firing drug users," contained a number of inaccuracies. I would like to reply to a few of the major points.

You cannot file this under the "only in Missouri" heading. State and federal laws pertaining to burden of proof and due process bind all states. A state agency cannot disqualify someone from receiving unemployment-insurance benefits simply because an employer alleges wrongdoing. Illinois handles these cases virtually in the same manner as Missouri.

If an employer cannot or will not furnish viable evidence of misconduct connected to the work, the claimant is not disqualified from receiving benefits. The same is true in Kansas and Nebraska. This is particularly true in substance-abuse cases when lab reports can be called into question. The Missouri Division of Employment Security gives the employer the opportunity to provide such evidence. If the employer chooses not to respond, neither the division nor the current law can be held accountable for the employer's choice of non-response.

In 550 cases of alleged substance abuse in 2001, the division did pay benefits. But in over 40 percent of these cases, the division had no choice because the employer did not provide information either in writing or by telephone to give details of the case. In most cases the employer did not bother to return our calls. Neither the division nor the law is responsible for the employers' failure to protect their own interests. I feel certain that had the employers taken the time and effort to respond, the outcome would have been different in the vast majority of these cases.

And just for the sake of perspective, these 550 cases were taken out of a total of nearly 293,000 determinations issued by the division in 2001. That's 0.002 percent of the division's caseload. I say this not to trivialize the serious issue of substance abuse in the workplace, but to point out to your readers the rather minuscule weight carried by these few determinations, most of which would have had a different outcome had the employer presented credible evidence.

Next, in 212 (38.5 percent) of the 550 cases already noted, the division was again placed in a position of having to pay benefits to alleged substance abusers because of employers' imprudent actions. These are the cases in which employers have required a pre-employment drug screening. But the employers allowed the applicant to start work prior to getting the results of the screening. When the employer gets the results of the screening, they find it necessary to fire the person. Whatever might have been in that person's system at the time of the test was there before they were hired, so there is absolutely no connection to the work. If the employer had merely waited until the results of the drug screening were known, this issue could be avoided entirely.

Of the cases you noted in the editorial, 38.5 percent would disappear. These, along with the 40 percent already noted, would possibly result in nearly 80 percent of the 550 cases having a different outcome or ceasing to exist.

Finally, the editorial referenced a case represented by attorney John Oliver of Cape Girardeau. The division has attempted to get information about this case. There is no published case from the Missouri Court of Appeals where Oliver was the attorney representing a health-care agency in an unemployment benefit case. The division is not able to identify the case with the scant details that have been in the newspaper. If Oliver would provide the division with some details of the case, I will be glad to have a senior claims supervisor review the case to determine if it was handled in accordance with state law and available case law. If an error in either fact or law has occurred and the determination is less than one year old, the division will gladly reconsider the findings.

I take exception to this case being tried in the court of public opinion when the parties in the case decline to discuss it with the one agency that could actually affect the outcome. Section 288.050 of the Revised Statutes of Missouri protects the confidentiality of Oliver's client and the former worker in any discussion with the division. The division can examine this case but cannot publicly identify the claimant or the employer.

The Department of Labor and Industrial Relations' Division of Employment Security administers the unemployment laws to the best of its ability. If the legislature changes the law, it will become our duty to conform to the change. We need employers to be continuously involved in the administration of the unemployment-insurance laws by providing reliable information to avoid outcomes that appear incredulous to the public. Without that, it is doubtful that any change in the statutes will have a significant impact on the outcome of disputed cases. Whatever the wording of the law may be, the division can only rule based on the facts presented to us in a given case and in accordance with due process of law.

Catherine B. Leapheart is the director of theMissouri Department of Labor and Industrial Relations.