What Do You Think? - Appealing PA UC Determination

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Latest post 04-22-2013 7:48 PM by KBoy420. 37 replies.
  • 04-07-2013 4:47 PM In reply to

    • Drew
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    Re: What Do You Think? - Appealing PA UC Determination

    IF the drug test requirement is not published or generally unavailable you might have a point that its not misconduct if you were unaware of the policy.

    But generally for even a cut finger on the job it triggers a need for test..companies want to practice defensive practices and I don't blame them.



  • 04-08-2013 5:04 PM In reply to

    Re: What Do You Think? - Appealing PA UC Determination

    Doesn't matter if it was that specific day or not.  If your employer has a policy against illegal drug use, that pretty much takes care of it.  
     

    I used to work for an employer who made all of us sign an agreement that if we had a drug problem, we'd come forward and seek treatment through the employee assistance program.  Failure to do so was grounds for termination. And yes, a few people were terminated for failing to come forward.

  • 04-08-2013 5:19 PM In reply to

    • KBoy420
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    Re: What Do You Think? - Appealing PA UC Determination

    Thanks again for all the replies.  I appreiate them.  Let's assume for a minute that I show up to the UC appeals hearing and there is no representative from the employer.  I have been trying to do some research and would like your thoughts on a few items.  Again - no one on behalf of the employer shows up.

    I'm assuming there will be evidence already established against me (the test results, which I haven't seen, perhaps a copy of the Code of Conduct, etc.  How can I exclude from evidence?

    Is there  any legal basis to argue proof of chain of custody?  As I understand my research, you would need actual testimony from each individual who handled the specimen, etc.  and those people would not be there to testify.

    Hearsay - I understand that you can try arguing hearsay regarding written or emailed statements which were made over 2 months ago.  Particularly if no one shows up to defend those statements.

    I'm waiting a call back from a firm that believes they can help me.  Are there any other angles that I can approach this?  Regarding the company's actual substance abuse policy (again, I do not recall receiving a specific document pertaining to this, and I certainly didn't sign anything indicating that I accept and understand such a policy).

    Also, can anyone explain the correct procedure for viewing what evidence is established against me?  I was told that the unemployment office will have this and I simply walk in and request to see it.  Is that the case?  Here is PA, we have CareerLink offices and then the actual UC office.  Can anyone clarify this for me?

    Thanks!

  • 04-08-2013 5:33 PM In reply to

    • Kivi
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    Re: What Do You Think? - Appealing PA UC Determination

    These administrative hearings in Unemployment Iinsurance (UI) offices are a good deal more informal than ones in criminal courts. For example, chain of custody is a huge issue in criminal cases involving drug charges where someone might go to jail or even prison.

    That statement may not nearly so true of an administrative hearing regarding UI benefits in a UI office where no one is going to go to jail. The rules of evidence likely are much more informal. The employer may be able to rely upon a drug test result that it's lab certified was your specimen. The burden might well be on you to prove the employer got it wrong rather than the employer proving "the chain of custody was maintained".

    I am not saying that I know this one for a fact, but just be prepared for the possibility that the UI judge might not be impressed with you trying to import criminal court procedures into what is a civil case.

    Similar statements might apply with regard to email, etc.  Hearsay statements, for example, may be more allowable in these hearings than in a regular court room as well.

  • 04-08-2013 6:49 PM In reply to

    • Drew
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    Re: What Do You Think? - Appealing PA UC Determination

    The employer needs to prove the issue it raised...and so far it's rather unclear if employer really does have a published policy against drug use which is at all relevant to the issues posed. Many employers have such policies..some do not..if the employer comes up short your attorney may be able to destroy the entire credibility of the employer.



  • 04-09-2013 9:38 PM In reply to

    • KBoy420
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    Re: What Do You Think? - Appealing PA UC Determination

    Hi Everyone,

    I wanted to provide some more info on my situation and get any more opinions that are out there.  I stopped by to get a copy of the file of evidence against me.

    As stated previously, my employer has stated that I was terminated (and denied benefits) for willful misconduct, failing a drug test.  Again, I have never seen the test results.

    There are multiple UC-45s that were submitted by the employer.  The fitst states in Part C #3 that employee was fired for failing a drug test.  The second UC-45 states in Part C #3 that the employee refused to submit to a drug test (this is not true, I submitted).

    UC-1953E states in #6 "the claimant refused to submit to a drug test". and in #8 "test not given" (again, not true, I supplied a specimen).

    Next is the written testimony of the employer, stating that in fact HR received a drug results test indicating a positive result.  There are no results or medical records included which show a drug test was actually administered and what the results actually were.

    Final paper in the file was an amendment sent stating "We wish to offer the following corrected information.  The employer does now wish to contest benefits for this individual.  Please proceed with your determination using the information provided as the employer will not be providing any further statements or information".

    So, here's my question.  This whole situation is based on a failed drug test.  The record shows inconsistent statements from the employer (listing reason for termination as a failed test, yet testifying that I refused to take the test).  I have never seen any official records showing I failed.  There is no record in the file.  Wouldn't that test result (some evidence of the actual result) decide this clearly?  What if the result was negative? 

    Thanks!

  • 04-09-2013 10:35 PM In reply to

    • Drew
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    Re: What Do You Think? - Appealing PA UC Determination

    There are at least three major problems that the employer needs to prove  and so far its not clear if they have met the burden.

    #1 Does the company have a  published no drung/drug test policy --not did you sign it or remember to read it --but produce it.  If they do not show and you claim there never was any such policy --where is their credibility?

    #2 Did you refuse an order to be tested--you claim you did not --they bear burden to prove you did.

     #3 I have no clue how vigorous the chain of evidence and all that is as to any supposed test ---but unless they produce  some semblence of witnesses as to how your specific sample was handled and the actual test results along with any professional intrepretation  I don't know how they make the point---for all you know somebody substituted a known "bad" sample as you were on the short list to get fired.

    My view is your odds rest with having a good lawyer.

     



  • 04-22-2013 7:48 PM In reply to

    • KBoy420
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    Re: What Do You Think? - Appealing PA UC Determination

    Hearing was today.  My employer, nor their represenation showed up for the hearing.  We objected to every piece of evidence except for the document sent on behalf of the employer which stated they did not want to contest.  The referee agreed and sustained all of our objections.  Overall I am very confident.

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