Welcome to the unemployment office - please check your common sense at the door.
by Peter S. Saucier

When an employer decides to terminate an employee, often the next question I am asked is whether to challenge unemployment. A picture immediately comes to mind of a bureaucratic system worthy of Lewis Carroll. I imagine rabbits with pocket watches and blathering red queens making policy decisions about the law. Better yet, I think of Humpty Dumpty saying, "When I use a word it means just what I choose it to mean - - neither more nor less." Two recent examples of Humpty Dumpty reasoning in the unemployment arena brought amusement, although they caused pain for the unfortunate employers involved.

The first hapless visitor through the unemployment looking-glass lives in Kansas (so Oz may have been a more applicable metaphor). As the result of a workplace problem, Rick Meier lost the use of his legs, and retained no fine motor skills in his arms. A workers' compensation judge ordered that the workers' compensation insurance company (Hartford) provide Meier with nursing services. Hartford dictated the pay and number of hours that nursing attendants would receive, and paid for the advertisements to obtain applicants for the job. Meier was allowed to select the nursing attendant, and direct the actions of the attendant during the hours of work.

One of Meier's former nursing attendants filed a claim for unemployment benefits. An unemployment Field Officer found Meier responsible for the unemployment, holding him delinquent for not having paid the required tax for his nursing attendant "employee." Meier quite sensibly believed that he was a consumer of health care, and that the nurses were independent contractors, or that Hartford was the employer and responsible for unemployment. That the nursing attendants signed contracts acknowledging their status as independent contractors bolstered Meier's confidence.

But Meier's faith in rational government was misplaced. A Hearing Officer, and the Secretary of the Kansas Department of Human Resources held that Meier was the employer responsible to pay unemployment taxes. One County District Judge tried to stop the madness, but he was swiftly overruled by the Kansas Supreme Court, which upheld the decision of the Secretary. Perhaps Meier should have planned for the added expense of paying unemployment taxes when he had his workplace accident.

Missouri, a close neighbor of Kansas in more ways than one, offered another interesting twist of unemployment reasoning. Baldor Electric Company maintains a policy against drug use which states as its specific objective that it is designed "to ensure a safe, healthy and productive work place." When an employee is injured on the job seriously enough to require medical attention, a drug screen is performed routinely under the policy. Apparently, Baldor Electric believes that drug use and serious accidents in the workplace may be connected and should be stopped.

But, the Missouri unemployment authorities do not share that view. When Raylene Reasoner cut herself and required medical attention at Baldor, she was tested and found to have marijuana metabolites in her blood. Baldor then terminated Reasoner, who applied for unemployment benefits. The Missouri Labor and Industrial Relations Commission allowed the benefits because Baldor did not prove that Reasoner was in fact seriously impaired by marijuana. The Missouri Court of Appeals then followed suit, imposing a criminal type burden upon employers in drug discipline cases (actually, in criminal court the presence of marijuana in the blood probably would be enough to establish criminal conduct) in order to show misconduct.

The dissenting judge in the Baldor case wrote that the majority decision invites litigation over the degree of impairment in work place cases. I agree with him to some extent, but wonder whether, in the long run, it does not just induce employers to stay away entirely from things as they appear through that looking-glass.

January 2002

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