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I received my determination from IDES that I am not eligible for benefits or wait week credit until I meet the eligibility requirements.
Issue 008 601A -Voluntary leaving.
Did the claimant voluntary leave employment? The evidence shows claimant voluntary left job when I did not take the required medical test. Claimant punched out stated he was going to take a post-accident drug/alcohol test, and never reported. Since the employer did not have the ability to control the conditions or acts the claimant left work voluntarily without good cause attributable to the employer, the claimant is ineligible for benefits and will be determined ineligible until he meets the eligibility requirements.
I would like to file an appeal. I need some advice on how I should handle this.
Series of events which lead to me being discharged. I am in automotive sales and on my way to do a dealer trade I was involved in an auto accident, my vehicle was hit by another vehicle. I called work to get insurance information. No tickets were issued. Upon my arrival back to work I reported the accident. In ourr employee handbook, employee has 24 hours to report the accident. After being at work for approximately an hour they said, oh you have to go take a drug test. I left work and made a stop and arrived at the medical facility to find out they were closed. I reported back to work and no one has asked for the paperwork. Having 24 hours to report the accident, I figured I will get the drug test early the next morning which is my day off. I had to take Wednesday off to take my son to emergency room. I reported to work Thursday morning and turned in paperwork from drug test. Approximately 2 hours later I was informed by the GM that he has to let me go for not following procedures, I was given any paperwork. I packed my belongings and left.
Once again I did not voluntarily leave work so I am not sure on how I should this should be handled. Any suggestions/advice would be greatly appreciated.
Treat your appeal like you were fired. You simply say, "the determination dated mm/dd/yy is wrong. I want an appeal hearing scheduled."
Then you wait and pay attention to the paperwork you receive. You want to try to determine if the employer will be coming to the hearing. You want to see what paperwork they will be using against you. You want to find out what YOU wrote when you applied for UI.
NOT following company rules can be misconduct, so be very careful with what you say. I'm not so sure that you taking Wednesday off excuses the 24-hour time limit. However, UI is about what can be proven by the employer and just what are the EXACT words of the policy. So you need to turn this into a situation where you broke no rule as written, and the employer fired you just the same. Also, look to your employer's progressive discipline policy. Could be that you should have just gotten a warning, and not fired. Also, if you had no clue about the employer's drug test policy, you can use that too because in order for it to be misconduct, you can't be accused of breaking a rule you didn't know about.
Important questions based on IL regulations:
1. Did you in your filing for unemployment, admit to the termination for failing to follow company accident drug testing policy? If not what reason did you give them for being unemployed?
2. When you were hired, did you sign anything regarding the company's drug testing policy, accident drug testing procedures or anything similar? If so, was it a generic document or did it include references to IL laws and regulations?
3. Very important, and you didn't give us any details on this, what exactly did your employer say or give you when they told you that you needed a drug test? Details here are important!
I received my determination from IDES that I am not eligible for benefits or wait week credit until I meet the eligibility requirements.
Issue 008 601A -Voluntary leaving.
Did the claimant voluntary leave employment? The evidence shows claimant voluntary left job when I did not take the required medical test.
I was informed by the GM that he has to let me go for not following procedures, I was given any paperwork. I packed my belongings and left.
Once again I did not voluntarily leave work so I am not sure on how I should this should be handled. Any suggestions/advice would be greatly appreciated.
Hmph - fired for not following procedures - but IL finds you guilty of Voluntary Leaving. Someone is playing games, here. Heavy-handed response for a one-two day delay on the drug test.
Curious, in the end, they didn't tell Illinois they discharged you for rules violation/misconduct, clearly figuring it would be harder for YOU to overcome a 'voluntary leaving.' They would have lost on appeal, for sure, on either misconduct or rules violation. Fwiw, this is what IL says on rules violation:
Quote:
Section 602A misconduct does not require a showing of a particular incident of a rules violation that triggers an employee’s discharge. Since the Section 602A definition of misconduct includes repeated rules violations following a warning,
Section 602A misconduct may result from cumulative rules violations taken as a whole. Therefore, Section 602A misconduct can be premised on either a particular incident of a rules violation that triggers an employee’s discharge, or the employee’s cumulative rules violations taken as a whole.
In your case, given the circumstances, this one time violation does not rise to the level of misconduct, which normally also requires it be 'wilful and wanton.'
Quote:
In order to constitute misconduct, an act must exhibit a wanton or willful disregard of the employer's rules, a disregard of standards of behavior which the employer has the right to expect of its employee, or an intentional and substantial disregard of the employer's interest or of the employee's duties and obligations to the employer.
Voluntary leaving is still a big ask for your employer, however, given the circumstances.
Fwiw, you would have a got an initial denial of benefits no matter which charge they used. So, don't take this denial for anything other than a standard "kick it up to appeal" response.
When your get your appeal date, clearly document, chronologically the sequence of events. Circumstances surrounding the 'voluntary leaving' should be mitigating if you are very clear these events were out of your control.
You might want to review some of the precedents toward the end of this very large pdf - on Voluntary Leaving and Rules Violations.
Hmph - fired for not following procedures - but IL finds you guilty of Voluntary Leaving. Someone is playing games, here. Heavy-handed response for a one-two day delay on the drug test.
Curious, in the end, they didn't tell Illinois they discharged you for rules violation/misconduct, clearly figuring it would be harder for YOU to overcome a 'voluntary leaving.' They would have lost on appeal, for sure, on either misconduct or rules violation. Fwiw, this is what IL says on rules violation:In your case, given the circumstances, this one time violation does not rise to the level of misconduct, which normally also requires it be 'wilful and wanton.'
Playing devil's advocate...
Even if the employer claimed voluntary quit, the employee will need to show it wasn't which requires claiming somthing else that can be established to the satisfaction of the refree, which in this case was terminated for misconduct. Even if the referee accepts it was not a voluntary quit, they can send it back to the ajudicator for a determination based on the new reason. That will most likely also result, (after a delay), in a disqualification. So they will need to appeal the new disqualification.
So the only real issue is based on the questions I already asked, since the OP did take the test, the review board will need for the employer to show that the employee violated something specific as it pertains to the testing procedures or timing. That would be something like not going straight to the testing if told to do so, or similar acts. Since the OP took the test, IDES will only look at facts surrounding the employee's actions regarding taking the test.
Now based on the Grepares ruling, just a single incident of not following the company's instruction for drug testing (even if you took the test and were clean) meets the requirements for misconduct and a denial of unemplyment benefits. I know it's a gross disparity compared to other employment misconduct requirements, but it is what it ended up being.
Thats why I think the OP needs to be straight up about the details from the time the accident was reported until being walked out the door.
Even if the employer claimed voluntary quit, the employee will need to show it wasn't which requires claiming somthing else that can be established to the satisfaction of the refree
This isn't universal. My state has the following reg:
2. The burden of proof rests upon the individual who makes a statement.
c. When a claimant states that he did not leave voluntarily, and the employer maintains he did, the burden of proof shifts to the employer to establish that there has been a quit.
To me that means that an employer bears the burden of proving the quit unless the claimant admits to it. To do otherwise, means that every employer could claim a quit, and stick the claimant with a burden that can't always be overcome.
This isn't universal. My state has the following reg:
2. The burden of proof rests upon the individual who makes a statement.
c. When a claimant states that he did not leave voluntarily, and the employer maintains he did, the burden of proof shifts to the employer to establish that there has been a quit.
To me that means that an employer bears the burden of proving the quit unless the claimant admits to it. To do otherwise, means that every employer could claim a quit, and stick the claimant with a burden that can't always be overcome.
My reasoning is IL has several court cases (gone past unemployment) dealing with drug/alcohol testing and they are not favorable to the employee.
1. The simple fact that a work place has posted a zero tolerance policy is accepted by the courts as prior notice. If the employer has any drug policy posted, in a manual, online or stated where you can be terminated for violating the drug policy, the courts have ruled no prior warning is needed.
2. The employer only has to show the employee failed to follow the instruction they were given on drug/alcohol testing. They don’t have to show harm, they don’t have to show warnings; they don’t even have to show the person was on drugs; just not following the instructions is serious misconduct.
3. If a person fails to report for drug alcohol testing as instructed, that failure to report is considered a voluntary quit. The employee doesn’t have to say they quit, doesn’t have to submit anything, they just need to fail to report and the employer has the option to accept it as is as a quit.
I personally believe this is so disproportionate to other employee issues, but until the IL State Supreme Court rules otherwise, the State Appeals Court rulings stand.
That’s why I was asking if they received any instructions on taking the test such as the employer saying or provided it in a manual that they are to report directly for the test. There had to be some type of instructions otherwise how did the employee know where to take the test.
If the employee failed to report as instructed, the employer is allowed to consider that a quit. If the employee took the test but not as soon as or in a manner the employer wanted it done, the employee can argue that it was not a quit. But in doing so, they run in to the other court rulings that said not following the employer’s instructions is serious misconduct. The saving grace is that NO instructions of any type have been provided, or the instructions do not support either option of the employer. That would mean the employee did not quit and did not engage in serious misconduct.
I didn't understand the behind the scenes logic as it relates to the drug/alcohol testing. I thought it was a general statement regarding the question of a quit or discharge. You made it very clear now. Thank you.
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