{"id":1953,"date":"2021-07-05T13:33:50","date_gmt":"2021-07-05T18:33:50","guid":{"rendered":"https:\/\/iowappa.com\/?p=1953"},"modified":"2021-07-05T13:33:50","modified_gmt":"2021-07-05T18:33:50","slug":"pissed-off","status":"publish","type":"post","link":"https:\/\/iowappa.com\/?p=1953","title":{"rendered":"Pissed Off"},"content":{"rendered":"

\"\"<\/a>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.\u00a0 He takes a hit and thinks nothing of it.\u00a0 Recreational use of pot is legal in Illinois.\u00a0 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.\u00a0 He purchases a package of fake urine at a vape shop.\u00a0 The following Monday morning, he is asked to take a random drug test.\u00a0 He manages to get the fake urine into the beaker without anyone seeing him.<\/p>\n

Days later, a lab result suspects that he may have used fake urine.\u00a0 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.\u00a0 However, he can also be arrested for a simple misdemeanor: defrauding a drug or alcohol test.<\/p>\n

The Iowa House of Representatives passed House File 283<\/a> by a vote of 61-30 last February with virtually no debate.\u00a0 Of course, what\u2019s the sense in debating a bill that is rammed down the minority party\u2019s throat?\u00a0 The bill creates \u201cthe criminal offense of defrauding a drug or alcohol test,\u201d and establishes the penalty for the offense as a simple misdemeanor for the first offense and a serious misdemeanor for subsequent offenses.\u00a0 The Iowa Senate did have debate prior to passing HF 283 along party lines.\u00a0 The 32-16 vote had Republicans falling in line with its caucus, and most Democrats falling in line with their caucus (one Democrat \u2013 Sen. Kevin Kinney voted with Republicans).<\/p>\n

The governor signed it into law in March.\u00a0 It became law on July 1.<\/p>\n

This must be one of the most wasteful uses of legislators\u2019 time.\u00a0 It reminds me of two other bills I saw enacted over the years.\u00a0 In the 1990s, a bill became law that created the crime of not returning a video cassette to a movie rental business.\u00a0 I know of no law enforcement officer who has ever been engaged in arresting someone for failing to return \u201cBack to the Future\u201d or any other videos.\u00a0 It\u2019s not worth their time.\u00a0 They will tell you that.<\/p>\n

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.\u00a0 I argued that the matter is for a civil court, not a criminal court.\u00a0 I have no idea how many law enforcement hours have been used to corral lost implements of husbandry, but I\u2019m sure it doesn\u2019t happen that often.<\/p>\n

This law falls into the category of law enforcement saying, \u201cthis is not worth our time to proceed with acquiring evidence, showing up in court for preliminary hearings, trials, etc.\u201d\u00a0 But the real story is going to be whether due process has been afforded to the employee.\u00a0 The law does not distinguish between a private sector employee and a public sector employee; it covers both.\u00a0 However, the public sector employee has more due process protection since the Iowa Supreme Court has said that \u201cprocedural due process protection must be afforded when an at-will public employee is discharged for reasons of dishonesty, immorality, or illegal conduct.\u201d<\/p>\n

Even a private sector employee has some protection.\u00a0 Prior to this law, there would be no constitutional protection for a private sector employee.\u00a0 Now that the legislature has made a segment of private sector employment criminal, there arises new arguments.<\/p>\n

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 \u00a7 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.<\/p>\n

Borschel v. City of Perry, 512 NW 2d 565 – Iowa: Supreme Court 1994 <\/strong><\/p>\n

\u00a0<\/strong>Why does the Iowa Legislature continue to pass legislation without researching constitutional case law?\u00a0 One answer might be that the majority party believes that the case of Borschel<\/em> is just an opinion; that only the legislature may create laws.\u00a0 But my take is that the word \u201cfraud\u201d has a powerful political pull.<\/p>\n

As I have claimed for over thirty years, a urine test will not indicate impairment.\u00a0 It will show only that there are metabolites of a substance in the body.<\/p>\n

Have you ever had a hangover?\u00a0 You may not be drunk, but a urine test will show that you may still have traces of alcohol in your system.\u00a0 This idea of thinking that employees will conduct themselves properly without using drugs or alcohol during their private time is superfluous.\u00a0 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.<\/p>\n

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.\u00a0 In the long run, it might lead to a less expensive practice.\u00a0 Not giving proper notice to a crime could lead to a dismissal of the criminal case and cost an employer punitive and compensatory damages.\u00a0 This should have been included in the bill.<\/p>\n

If the employee is at-will, which most Iowa employees are, why don\u2019t employers just fire them?\u00a0 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?<\/p>\n

Next up.\u00a0 National Guard troops to search vehicles for liquor that was purchased across state lines in order to avoid paying Iowa\u2019s higher booze taxes.<\/p>\n

 <\/p>\n","protected":false},"excerpt":{"rendered":"

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.\u00a0 He takes a hit and thinks nothing of it.\u00a0 Recreational use … Continue reading →<\/span><\/a><\/p>\n","protected":false},"author":2,"featured_media":0,"comment_status":"open","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[264,43,56,32],"tags":[875,873,871,204,874,872],"class_list":["post-1953","post","type-post","status-publish","format-standard","hentry","category-fairness","category-medical-cannabis","category-privacy","category-substance-abuse-and-alcoholism","tag-borschel-v-city-of-perry","tag-fraud","tag-house-file-283","tag-iowa-legislature","tag-sen-kevin-kinney","tag-urine"],"_links":{"self":[{"href":"https:\/\/iowappa.com\/index.php?rest_route=\/wp\/v2\/posts\/1953","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/iowappa.com\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/iowappa.com\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/iowappa.com\/index.php?rest_route=\/wp\/v2\/users\/2"}],"replies":[{"embeddable":true,"href":"https:\/\/iowappa.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=1953"}],"version-history":[{"count":1,"href":"https:\/\/iowappa.com\/index.php?rest_route=\/wp\/v2\/posts\/1953\/revisions"}],"predecessor-version":[{"id":1954,"href":"https:\/\/iowappa.com\/index.php?rest_route=\/wp\/v2\/posts\/1953\/revisions\/1954"}],"wp:attachment":[{"href":"https:\/\/iowappa.com\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=1953"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/iowappa.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=1953"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/iowappa.com\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=1953"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}