LAW REQUIRES MORE THAN ALLEGATIONS

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.