unemployment

owlbyrd · January 2004

A DOT regulated driver was arrested while off-duty for DUI and Possession of <2 oz of Marijuana. I subsequently terminated him. He then filed for UI which was granted on the grounds that the misconduct was not connected with the work. I have appealed. Do I have a fighting chance. Please would like a course of action if you have encountered similar situation. Hearing on 27JAN04. This is in Texas.

Whirlwind2 · January 2004

I, too, am a Texas employer with DOT drivers, and I've experienced the fun of a few TWC phone hearings. You have a fighting chance, so fight it. Be prepared for your hearing with the DOT regs, your (presumably) zero-tolerance policy, and maybe even some information about the length of time the chemical remains of pot stay in the body. You might lose, but it doesn't take much time or effort to do the phone hearing, and even if he gets UI, it's better than keeping him on your staff. Good luck!

earlru · January 2004

We are a DOT regulated company as well and we have won several times upon appeal for the unemployment. One of the things we use is the DOT regulations section 382 and part 40. In a Motor Carrier knowingly allowing a person to preform safety-sensitive funtion. The regulation does not state that the person must be under the influence at the particular time of the incident

The only thing I see that is going to hurt you is that when you have a person charged with DUI or similar situation is that you did not give this person an opportunity to resolve this before termination. Such as a period of suspension or unpaid leave which if not resolved will mean termination.

In our policy we state upon hire that we are a zero tolerance company and that plea bargining to a reduced charge will not mitigate the original charge. Only complete dismissal will allow him to keep his job. We normally use 3 to 6 month of unpaid leave.

Don D · January 2004

This is the kind of government foolishness that finds its way to the newspaper. Maybe you can help.

Pork · January 2004

OWLBYRD:Did your company or the police do a drug and alcohol test; does your company have access to the results? Did your ee report the incident to your office? Did you suspend the driver until you had completed your investigation? Was Part 391 used to disqualify the driver pending completion of your investigation? 391.15 (b) (2)says that "a driver who receives a notice that his/her license, permit, or privolege to operate a commerical motor vehicle has been revoked, suspended, or withdrawn shall notify the motor carrier that employs him/her of the contents of the notice before the end of the business day following the day the driver received it." Did he do this? (c) (2) Disqualificating offenses. The following offenses are disqualifying offenses: (i) Driving under the influences of alcohol, as prescribed by State Law; or (iii) Transportation, possession, or unlawful use of a 21 CFR 1308.11 Schedule I identified controlled substance, amphetamines, narcotic drugs, formulations of.......

Your termination should have the above documentation on which you then have proof of violation of Federal and State law and the failure to comply with your company policy, as well as, becoming disqualified from driving for your company, which also means he was no longer insurable as a CDL driver, additional, you had no other position available within your company to place this now non-insurable ee.

I hope this helps and I hope you have all this documentation. It is obvious, Texas does not have any smarter UI case managers on-board than our State of Mississippi.

PORK

unemployment

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