We welcome you to JobBank USA and hope your job hunting experience
is a pleasant one. We hope you find our resources useful.
September 4, 2006
Small business owners Lynn and Thom Betz went confidently into an unemployment compensation hearing on March 30. One of their Sensibility Soaps employees failed a drug test, was denied benefits, and appealed. She was fired for just cause, the Betzes thought.
In late 2005, two troubled employees had approached the Betzes. Some of their fellow workers at the West Mayfield beauty and personal care products manufacturer were smoking pot on lunch break, they said.
Working with experts at The Medical Center, Beaver, Sensibility Soaps instituted a zero-tolerance drug testing policy. On Friday, Jan. 6, the company explained the policy and invited questions.
On Monday, testing began. Two employees simply left. Another took the test, then called Lynn Betz aside and said she feared she would test positive for marijuana. She did, and was fired. Her application for unemployment benefits was denied.
Within a day of the March 30 appeal hearing, the referee ruled that the fired employee should receive unemployment benefits, citing testimony from the worker and her husband that she had only smoked pot once, at a New Year's Eve party.
Thus began one small company's strange journey through the state unemployment system, a journey that points out some lessons for small businesses in handling drug testing and other employee behavior issues.
"We were trying to make our workplace safe, and we were penalized. We were trying to do the right thing for our employees and our company," Lynn Betz said. "Unemployment compensation is there for people who are legitimately laid off, not to support people who are fired for just cause."
The Betzes appealed the referee's decision. Then, they waited.
---
Does the Sensibility Soaps decision point to problems in the unemployment system, or is it an anomaly? Depends who you ask.
"That specific case seems kind of ridiculous. It's certainly the exception, not the rule, when a worker is granted benefits after failing a drug test. Nine times out of 10, we know the worker is going to lose," said Matt Gulish of Beaver County Worker Resource and Advocacy Project, formerly the Beaver Valley Unemployed Committee, which often represents workers in compensation cases.
But, he said, "Due process is one of our most sacred rights, and in our opinion, companies already have too much leeway." In particular, he said, companies often come armed with lawyers, something most jobless people can't afford.
But Kevin Shivers, Pennsylvania Director of the National Federation of Independent Business, said it is workers who have too much leeway.
"Personal responsibility is not part of the Pennsylvania unemployment compensation system. Accountability is not part of the system," Shivers said. "The result is that job creators spend more in taxes, into a system that continues to allow fraud and waste and abuse."
But reform is tough, Shivers said, perhaps because of labor unions' power, or because legislators shy away from something that could be perceived as anti-worker.
The NFIB supports a bill that would require an appeal to be dismissed when the worker doesn't show up for a hearing. Some referees were known to give a courtesy telephone call to workers who didn't show up for a scheduled hearing.
Lynn Betz said the referee repeatedly "shushed" her when she tried to speak during the hearing, but listened carefully to the testimony of the worker's husband.
Such claims make him chuckle, Gulish said. It's obvious referees give more weight to a company's testimony, especially now that the state Department of Labor is hiring more lawyers to hear appeals. Previously, it had hired more people who came up through the unemployment compensation system.
The referees are Civil Service employees and are hired and supervised just as any Civil Service employee is, Department of Labor and Industry spokeswoman Shannon Powers said.
The Betzes went for help to the office of state Rep. Mike Veon, D-14, West Mayfield, and were referred to Cynthia Vannoy of Beaver Initiative for Growth. Vannoy said her office hears an equal number of complaints from both workers and companies about the system.
"I really understand their problem," Vannoy said.
But, she said, employers have to go into referee hearings with evidence in hand, because new evidence will not be admissible at a later date.
"Unfortunately, that happens to a lot of small companies," she said.
Lynn Betz said she was disappointed in the lack of help from Veon's office.
"We were totally alone in this," she said.
Beaver County Director of Human Resources Rick Darbut said the county has had mostly good dealings with unemployment referees. The key to success, he said, is making sure that procedures and policies are locked in and have been carefully explained to employees. Then, he said, "the referee will give you a fair shake."
---
The Betzes said their drug policy was explained to employees at the Friday, Jan. 6, meeting, and they had an opportunity to ask questions. Workers were given a copy of the policy to read over the weekend. They also had a chance to ask questions Monday.
The company owners did acknowledge that they probably didn't adequately prepare for the referee hearing. They said they just couldn't imagine that the decision would be overturned.
They appealed the March 31 decision with statements from a physician and a nurse refuting the workers' claim of only using marijuana on New Year's Eve. The window of detection for marijuana use, they said, is 24 to 72 hours.
The Betzes notified the state Department of Labor and Industry of their appeal in April. For months, they heard nothing.
During the week of Aug. 20, The Times called the Department of Labor to check on the Betzes' appeal.
Spokeswoman Shannon Powers said it was not uncommon for an appeal involving complex issues to drag on a bit. Still, she said, the Sensibility Soaps appeal had gone on longer than the federally mandated 75 days.
A few days later, the Betzes were notified that their appeal was denied.
Sensibility Soaps just didn't follow all the rules, the board of review said.
The board of review noted that legally, a worker is ineligible for compensation if he or she is discharged for failing a drug test. However, the Sensibility Soaps policy didn't say specifically what the penalty for failing a test would be, the board said.
The policy was a standard form used by a variety of businesses and recommended by The Medical Center. The policy "says zero tolerance," Lynn Betz said. "Our other employees said they had no doubt what would happen if they tested positive for drugs."
If the Betzes want to appeal to the Commonwealth Court, they'll have to foot the extra expense of hiring a lawyer. Still, they said they think they will appeal.
"I just can't find anything right about this decision," Lynn Betz said. "We did the right thing. It's just unbelievable to me how this has transpired."
Stephanie Waite can be reached online at swaite@timesonline.com.
Email This Page!