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.