Employer's story changed from.me quitting to discharged for gross misconduct. Their story telling is gross!

by L.
(Kansas)

Hi there Chris,


I don't know where to start. I am still in complete shock.

I received a letter yesterday saying I wasn't entitled to benefits after receiving them for four weeks. They stopped payments and scheduled adjudication, or phone interview for march 6.

Apparently, my employer is now saying something completely different. Isn't the fact that they changed their story about me quitting to discharged for gross misconduct. I don't even know what that is, but it sounds awful. I worked for this employer for 1 year. I absolutely loved it there. I got good evaluations and staffing recruiters called me often asking me to work overtime. I only turned them down one time. I worked 64 hours week many weeks. Long story short (kinda. I worked as a private duty nurse in a home for almost 1 year for one particular patient. I happened to be outside smoking on break when a woman came up to me with a picture of a dog and asked if I lived there and she told me it was a Christmas present. I knew my patient's mother "found" the dog and was trying to keep it for her boyfriend. I can't stand thieves. Also, I can't lie very well. The lady could tell just from my face it was in my patients house. Patients mom wouldn't give it back to her. I guess 8 cats and 2 dogs just weren't enough. Cops came and I had emailed my work telling them what was going on. Patients mom had her 10 yo son go in basement and hide with the dog. My employer told me to tell the cops I was working and I don't want to be involved and for me to give cops employers number. Anyway, after cops left patients mom told me to leave. So I did, and called employer to tell them that she told me to. My employer told me I did the right thing. Well, the day before I was to return back to work I received an email that patients mother did not want me to return to their home. I live 3 hours from employer. I was hired because of an ad that they needed a nurse in my area. I have worked there a year and they never had any other patients in the area. The closest was 83 miles. Anyway, I bugged the staffing recruiters about getting me a patient. One of them told me she may have one but it wasn't for sure and it was 83 miles away one way. In the meantime, the dog thief called my employer and told them they should drug test me. Is hear say reasonable suspicion because as I said earlier I got raving reviews. I went to the drug test as instructed. I only took my ID in as I was told to do as my 14 yo son waited in the car. The place was dirty, they were rude, and it was humiliating. I was on antibiotics for a urinary tract infection and it was hard to pee without it burning bad. I brought my specimen out to the rude lady and waited for several minutes vas she gossiped to a coworker about who does the most ua's each day. Finally, she comes back to me and looks at the cup and says the temperature was not right. She said I had to go back to the lobby and drink water for a minimum of 20 minutes but not more than 3 hours and if I left it would be a refusal. I had already been in there treated rudely for over an hour, while my son waited in the cold car. I had no idea it could possibly take this long for a UA. I ended up leaving. The only reason why I was being subjected to this was because my patient's mother (thief) was mad and was trying to make things up about me so she didn't look like the pos she is. Is what my employer did legal. I wouldn't think hear say vis reasonable suspicion. Anyway,I.couldn't stomach the thought of drinking more water while my urinary tract burned like he'll and son waited in freezing cold. The staffing recruiters only had that one patient (maybe) 83 miles one way. I have a teenage son who needs me in the same county I am a single mom.
I don't have 3 hours to put on the road every day. My last patient was 20 min away. I emailed my work and told them what happened and they said they didn't want to lose me and that a lady from human resources wanted to talk to me. In the meantime two weeks had now passed and bills were piling up. I know the agency doesn't have work for me unless it's more than an hour drive. I filed for unemployment and told them work hours were reduced. I mean I wasn't fired didn't quit but gross misconduct? And to make things worse it's in the state of KS where you say I need an attorney. PLEASE HELP ME

Chris's Response



Hi,

I don't know if this will help you get your benefits back, but here I go anyway because you actually told a compelling story which made me answer as to demonstrate how I might argue against you on a few points .. you made.

Kansas does not have any special UI provision addressing drugs or alcohol testing .. but refusal to take one as instructed by an employer can be an act of insubordination .. which in some states is included as being gross misconduct.

What makes your situation a bit different in that it that it probably was a lack of work claim at first, is that an employer can send an informational letter which implies, or directly informs the department of new developments. In your case a temp employee committed gross misconduct while collecting benefits.

Those who work for staffing agencies tend to forget the very nature of the job they are collecting benefits from is an ongoing relationship punctuated with a lack of work claim when there are no suitable assignments.

(KS does have a gross misconduct provision. Per DOLETA it states something along the lines of ..
Theft, fraud, intentional damage to property, intentional infliction of personal injury, or any conduct that constitutes a felony. Gross misconduct also includes the use of, or impairment from, alcohol or drugs by an individual while working, or a positive breath alcohol test or chemical test administered pursuant to specific requirements (Kansas).

Although I don't think the gross part of that could easily be made to stick by your employer, they also don't make the decision on the totality of facts presented at the hearing.

My evaluation is that they can't prove any illicit drug, or alcohol us ..doesn't mean the employer won't get regular misconduct to stick when all that information you give about the drug test that didn't happen, won't do you in when you end up sounding like you were just justifying with reason why you didn't complete the test as required to keep your job. My thought is you were insubordinate even with the hellacious burning of a UTI.

No matter who enticed the employer to send you for a drug test, even if purely out of vindictiveness, I would wonder about an employee who did not take an accusation of an employee using drugs seriously. That alone should create a reasonable suspicion for the employer to act on.

I think your biggest weakness comes out when YOU start explaining why you did not take the test that day, instead of explaining measures you took so you could take the test .. you start explaining why you didn't.

A "reasonable person" (a standard used in UI) would know if they didn't complete the test, or come out clean .. their job would be on the line for either reason.

And this has nothing to do with the rude person at the testing lab, or it's cleanliness, or the gossip you overheard. But it does have everything to do with the time frame for completing testing you were informed of by that rude person.

I suspect someone besides me will ask you why you couldn't of followed those instructions even with your son, reasonably knowing if you didn't make it back in the three hours to pee again .. at the proper temperature for pee, it might result in being fired not for violation of a drug/alcohol employer policy, but at the very least, for insubordination ..

And I haven't even mention how all the personal needs you mentioned as to why you couldn't, could very well imply you weren't able and available to accept a suitable new assignment if one was offered.

Comments for Employer's story changed from.me quitting to discharged for gross misconduct. Their story telling is gross!

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Apr 11, 2015
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One has to pay me to play me
by: Bill Getting Old

I really don't care what the reason. If no one is paying for my time to take the drug test, I don't see why I should take it.

For my agencies, I specify I am hired for one job only. I mark up employment applications to reflect the understanding. I change any agreement. They can take it or leave it. One agency and I agreed not to work together just for that reason.

When the particular assignment is over, I am a free agent and have full filled my contract. I will usually telegraph the end of the job in writing before and after the job just to be looking.

Is that not correct?

Mar 22, 2015
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Dognapping gross
by: Leah

Hey Chris, I just wanted to let you know my employers drug policy is after there has been an accident caring for a patient of when there is reasonable suspicion. Thank you.

Mar 21, 2015
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Welcome
by: Chris

You are very welcome and I hope it helps while you get prepared for that hearing.

I believe you need to think on what your reasonable explanation will be when asked eventually why the pee temperature wasn't at a proper temp.

Mar 21, 2015
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Awesome
by: Leah

Hey Chris, you are so awesome! I can not thank you enough for the time you took out of your busy schedule to
answer back. I entirely agree with what you just said, and wonder the same things. I will definitely keep you posted as new events take place. Thanks, again.

Mar 21, 2015
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Ummmm not sure.
by: Chris

I've never read anywhere reasonable suspicion requires two different people to witness suspicious behavior and if the dognapper told your employer you used drugs, that's not exactly what I'd call hearsay. Hearsay would be when the employer is testifying to a KS ALJ, about what the dognapper told them and not all states strictly prohibit hearsay, but have specific exceptions sometimes.

But that doesn't mean you can't object to their testimony on those grounds.

It is sort of curious and possibly worth exploring that the employer waited as long as they did to ask you to take the drug test and given the fact, the dognapper isn't likely going to be a witness at your hearing to directly relate their story of why after all the time you worked for her she only mentions her suspicions when you weren't willing to lie to the police so she could keep that dog .. which, after the owner showed up .. would be the same as stealing a dog .. not just giving safe harbor to a lost dog ..

But still, I think it's up in the air as to how the decision goes.

Good luck and let us know which way the wind blows after your hearing.

Mar 21, 2015
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Gross
by: Leah

Chris, thank you so much for all your input. They have a reasonable suspicion rule. I have never been wrote up, or asked about bizarre questions. From what I have been reading reasonable suspicion has to be witnessed by 2 people. I hadn't even worked for almost a week after the dognapping incident. So I don't see how my actions could have raised reasonable suspicion. Especially when I wasn't there. And also from what I've read when there's a reasonable suspicion rule hear say or a dog napper who is retaliating to make my life have more inconveniences is not enough to lead to a UA. Is this true?

Mar 20, 2015
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I get how you feel about this, but that's not the point now
by: Chris

I agree, it may feel like we are losing our rights in this country, but part of the blame is our own when we let the rights we do have slip away from us .. or in the case of unemployment, base our arguments for benefits .. on what we feel, or think should be true about our rights.

So, since it is a drug test at issue and in Kansas I tried to find some information and asked if Kansas had any drug testing laws.

This is what I found which I thought was useful because it raised another question you should know the answer to.

What does this nursing agency's employee handbook say about drug testing.

When there is not a law to say otherwise, the reason for the test, may very well be up to the discretion of an employer per their own policy and therefore, you should presume what story they will tell about why they sent you.

In other states, there are very specific protocols, as a nurse you should be familiar with regarding chain of custody, mro's etc., etc .. or how a drug test and it's paperwork must be conducted and filled out.

To guard against the employer's argument, you need to have a reasonable explanation for what was ultimately, your refusal to take that drug test that day ready to go.

In other words .. what you told me .. didn't exactly explain why .. but if you had quoted the employer's rule .. or told me they didn't have a rule .. then I'd be discussing this from that angle.

Mar 20, 2015
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Gross
by: Leah

Thank you so much for your comments, Chris. I was hired specifically for that patient from an ad off a local craigslist ad. My employer is actually located 4 hours away. I had worked there almost a year, and I had asked several times if there were any patients available in my area for cover time. My supervisor said no and theres probably never would be. I was told not to return to my patient's home through an email on January 5th. January 2nd was the day my patient's mom wanted me to leave after the cop dog napping incident. From what I understand UA testing is done when the employer witnesses bizarre behavior. I had never been wrote up for anything. How can two people witness bizarre behavior when they called me to do a UA on January 8th and I had already lost my job. I bugged the staffing coordinators several times Cabot more work knowing what the supervisor had previously told me regarding other patient opportunities. This is not a temp agency. It is a nursing agency. Quite frankly, I feel in this country, we are losing our rights. I felt like it was an invasion of my privacy and there definitely was no reasonable suspicion. How could there be? I hadn't even worked for almost a week. I am tired of always doing the right thing yet I am the one who had to be humiliated and take time to go submit to something I did not agree with based on hearsay from a disgruntled client.

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