Does This Letter Look Correct?

[Goupinya]

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.
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Dear Board,
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I am writing this letter to appeal the decision in regards to my unemployment benefits claim for the following reasons.
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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.
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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.
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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.
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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,
***** *******What is the name of your state (only U.S. law)?

 

[commentator]

Your letter is fine, as it goes. I would strongly suspect that your employer has a zero tolerance policy for ANY amount of drug in your test, and does not have to abide by the statutes used by the state regarding what percentage of the drug has to be in your system before you can officially be declared to be under the influence of drugs. Why would the company, in this at-will state, not be allowed to set their own definition of a positive drug test, and to set it at any amount of this substance?

As for the "one year from this date" warning you signed, it does not mean that at any time after a year has passed, you must be treated as though you had not used drugs. It just showed that you have received progressive discipline and that you have been warned about drug use in the past.

I also strongly suspect that in the case law case you cited, the employee did not have an at all positive drug test by the company, even though there was evidence of off duty drug use. Many times companies will fire a person who has been caught up for drugs off the job, in which case they cannot demonstrate on the job drug use, and the person is deemed eligible for unemployment benefits. In your case, there was some level of the drug found in the test. That was while you were on the job. So that was the reasoning behind your misconduct termination which has been upheld in the hearing.

But anyhow, go on, the letter makes a fine argument. You certainly have nothing to lose by filing it. As to whether or not you will prevail, I can't make a conclusive statement, just can see a few flaws in your reasoning that they may come up with too. But good luck to you, maybe it will work.

 

[Goupinya]

Thanks for the reply, I sent the letter off and received a letter stating that it would be reviewed in 30 to 60 days. I was thinking that since the concentration was not enough to meet the state's requirement for a positive test that would mean that in their eyes, I was terminated for a non positive drug test. They can't ignore their own statues, can they? I put the info. about the 1 year contract in there because that was a specific thing the appeal judge mentioned. That contract had expired, but really is irrelevant, because a non positive test can not be misconduct. I don't know, I guess we will see, thanks again for your input.

 

[justalayman]

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.

I don't think it looks correct because you are arguing the wrong argument. You are arguing the termination which is irrelevant. You need to be arguing the denial of benefits because the test results did not meet the legal requirement to be considered a positive result. The employer can fire you for any or no reason. This rests solely on the states ability to deny the benefits only with valid reason.

That contract had expired, but really is irrelevant, because a non positive test can not be misconduct.

that is irrelevant because the employer can consider anything they wish as misconduct. It is whether the state has the right to deny you UI benefits for the stated misconduct or not. Again, you are arguing your firing was not allowed because there was no legally supportable misconduct. That is what is irrelevant. They argument for you is the state cannot consider the reason as misconduct because it does not meet the legal definition of misconduct.

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.

but it is still misconduct in the eyes of the employer and a valid reason to terminate your employment. The only thing that makes a difference is whether the state can deny your claim due to the stated misconduct. It would appear they cannot so unless the employer has stated something differently than you have presented here, I believe you should prevail. If the employer argued that was merely one part of what they claimed as the cause for termination, the result could be very different.

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.

that is a very bad argument. Admitting to using drugs, either at work or away from work will always work against you. You might want to familiarize yourself with the 5th amendment of the US Constitution. Never incriminate yourself.