Pissed Off

A private sector employee from Iowa goes across the border on a Friday after work to Illinois and his friends ask if he wants a hit off a blunt.  He takes a hit and thinks nothing of it.  Recreational use of pot is legal in Illinois.  On his way home on Sunday, he realizes that there could be a random drug test early in the week and has heard that marijuana will stay in his system for up to 30 days.  He purchases a package of fake urine at a vape shop.  The following Monday morning, he is asked to take a random drug test.  He manages to get the fake urine into the beaker without anyone seeing him.

Days later, a lab result suspects that he may have used fake urine.  Depending upon a union contract; an employee handbook; or company policy that has been posted conspicuously, the employee may be disciplined, or in a severe case, terminated.  However, he can also be arrested for a simple misdemeanor: defrauding a drug or alcohol test.

The Iowa House of Representatives passed House File 283 by a vote of 61-30 last February with virtually no debate.  Of course, what’s the sense in debating a bill that is rammed down the minority party’s throat?  The bill creates “the criminal offense of defrauding a drug or alcohol test,” and establishes the penalty for the offense as a simple misdemeanor for the first offense and a serious misdemeanor for subsequent offenses.  The Iowa Senate did have debate prior to passing HF 283 along party lines.  The 32-16 vote had Republicans falling in line with its caucus, and most Democrats falling in line with their caucus (one Democrat – Sen. Kevin Kinney voted with Republicans).

The governor signed it into law in March.  It became law on July 1.

This must be one of the most wasteful uses of legislators’ time.  It reminds me of two other bills I saw enacted over the years.  In the 1990s, a bill became law that created the crime of not returning a video cassette to a movie rental business.  I know of no law enforcement officer who has ever been engaged in arresting someone for failing to return “Back to the Future” or any other videos.  It’s not worth their time.  They will tell you that.

Then, not that long ago, the Iowa Legislature passed a law that made the failure of returning farm equipment to an implement rental provider a crime.  I argued that the matter is for a civil court, not a criminal court.  I have no idea how many law enforcement hours have been used to corral lost implements of husbandry, but I’m sure it doesn’t happen that often.

This law falls into the category of law enforcement saying, “this is not worth our time to proceed with acquiring evidence, showing up in court for preliminary hearings, trials, etc.”  But the real story is going to be whether due process has been afforded to the employee.  The law does not distinguish between a private sector employee and a public sector employee; it covers both.  However, the public sector employee has more due process protection since the Iowa Supreme Court has said that “procedural due process protection must be afforded when an at-will public employee is discharged for reasons of dishonesty, immorality, or illegal conduct.”

Even a private sector employee has some protection.  Prior to this law, there would be no constitutional protection for a private sector employee.  Now that the legislature has made a segment of private sector employment criminal, there arises new arguments.

The statutory presumption of innocence is found in the Iowa Criminal Code. It requires a person’s guilt be proven beyond a reasonable doubt in criminal proceedings. Iowa Code § 701.3. We do not believe this statute implies a public policy applicable in the employment context. While a defendant charged with a crime is presumed innocent until proven guilty, this right is limited to criminal proceedings.

Borschel v. City of Perry, 512 NW 2d 565 – Iowa: Supreme Court 1994

 Why does the Iowa Legislature continue to pass legislation without researching constitutional case law?  One answer might be that the majority party believes that the case of Borschel is just an opinion; that only the legislature may create laws.  But my take is that the word “fraud” has a powerful political pull.

As I have claimed for over thirty years, a urine test will not indicate impairment.  It will show only that there are metabolites of a substance in the body.

Have you ever had a hangover?  You may not be drunk, but a urine test will show that you may still have traces of alcohol in your system.  This idea of thinking that employees will conduct themselves properly without using drugs or alcohol during their private time is superfluous.  The irony can be found with executives that hit the golf course during the day to entertain prospective clients, while having a drink or two, condemning the worker who tries to hold on to employment when the circumstances and odds are against her.

At the least, a conspicuous notice of some sort should be posted where employees can see it, warning them of the criminal act and its consequences.  In the long run, it might lead to a less expensive practice.  Not giving proper notice to a crime could lead to a dismissal of the criminal case and cost an employer punitive and compensatory damages.  This should have been included in the bill.

If the employee is at-will, which most Iowa employees are, why don’t employers just fire them?  Why is it necessary to have these feel-good laws that a lobbyist may have sold to a client to show that they can get a law passed?

Next up.  National Guard troops to search vehicles for liquor that was purchased across state lines in order to avoid paying Iowa’s higher booze taxes.