A. In General
1. The general rule is that an individual is disqualified for
unemployment insurance benefits if discharged for misconduct in connection with the individual's employment.
See Iowa Code Section 96.5-2-a.
2. In general, misconduct is found in deliberate acts or omissions, which constitute a material breach of the worker's
duty to the employer or in repeated acts of carelessness or negligence. Poor performance due to inability is not
considered misconduct. See 871 IAC 24.32(1).
3. In the case Huntoon v. Iowa Department of Job Service, 275
N.W.2d 445 (Iowa 1979), cert. den. 444 U.S. 852 (1979), the Supreme Court of Iowa accepted the rule cited above as the
4. The employer has the burden of proof of misconduct. See Iowa Code Section 96.6-2.
5. In order to justify disqualification, the evidence must establish that the final incident leading to the decision to
discharge was a current act of misconduct. See 871 IAC 24.32(8). See also
Greene v. EAB, 426 N.W.2d 659 (Iowa App. 1988).
6. Information acquired after the discharge will not be considered. We have no Supreme Court precedent in this
state, but the general rule, with an exception discussed below, is that after-acquired information will not be
considered because it could not have been the basis for the decision to discharge.
7. Although the definition of
misconduct in 871 IAC 24.32(1) excludes "good faith errors in
judgment or discretion," a claimant's subjective understanding
and intent are not the end of the analysis. "The key question is
what a reasonable person would have believed under the
circumstances." See Aalbers v. IDJS, 431 N.W.2d 330,
335-336 (Iowa 1988).
1. Excessive unexcused absenteeism is one form of
misconduct. See Higgins v. Iowa Department of Job Service, 350 N.W.2d 187 (Iowa 1984).
a. It must be both excessive and unexcused.
b. The concept includes tardiness, leaving early, etc.
2. Absence due to matters of "personal responsibility", e.g.,
transportation problems and oversleeping is considered unexcused. See
Harlan v. IDJS, 350 N.W.2d 192 (Iowa 1984).
3. Absence due to illness and other excusable reasons is deemed excused if the employee properly notifies the
employer. See Higgins, supra, and 871 IAC 24.32(7).
a. Here the ALJ will give weight to the employer's policy
on providing notice.
b. The ALJ will also consider circumstances such as the sudden illness of a family
member, especially a small child.
c. Unreported absence due to mental incapacity or the nature of the reason for absence will be considered
excused. See Roberts v. IDJS, 356 N.W.2d 218 (Iowa 1984), and
Gimbel v. Employment Appeal Board, 489 N.W.2d 36 (Iowa App. 1992).
4. A single unexcused absence did not constitute misconduct
even in a case in which the worker disregarded the employer's instruction to call back with a status report after
the worker saw his doctor. See Sallis v. EAB, 437 N.W.2d 895 (Iowa 1989).
5. Practice tips:
a. Remember the last straw doctrine. A worker discharged for nine unexcused instances of tardiness
with the final incident an absence due to illness properly reported to the employer will not be
b. Remember Sallis. A worker discharged for nine instances of absence due to illness properly reported
with the final incident an unexcused tardiness will not be disqualified.
c. The ALJ applies state law, not employer attendance policies. Many employers have adopted no-fault
attendance policies. The ALJ will disregard the policy except for provisions on giving notice.
d. In some cases, this ALJ has disregarded "unreasonable" policies on giving notice, as when an employer requires 16 hours of notice that an
employee will be absent the following day. These decisions have been upheld by the Employment
Appeal Board but have not been appealed further.
1. General rule: continued failure to follow reasonable
instructions constitutes misconduct. See Gilliam v. Atlantic Bottling
Company, 453 N.W.2d 230 (Iowa App. 1990).
2. Failure to perform a specific task does not constitute misconduct if the failure is in good faith or for good cause.
See Woods v. IDJS, 327 N.W.2d 768 (Iowa App. 1982).
3. The ALJ will analyze this type of case by evaluating both the reasonableness of the employer's request in light of all
circumstances with the worker's reason for non-compliance. See Endicott v. IDJS, 367 N.W.2d 300 (Iowa App. 1985).
4. Example. Refusing overtime with only five minutes' notice was not misconduct in the case
Pierce v. IDJS, 425 N.W.2d 679 (Iowa App. 1988).
1. Profanity or other offensive language in a confrontational or
disrespectful context may constitute misconduct, even in isolated situations or in situations in which the target of the
statements is not present to hear them. See Myers v. EAB, 462 N.W.2d 734 (Iowa App. 1990), overruling
Budding v. IDJS, 337 N.W.2d 219 (Iowa App. 1983).
2. This is ordinarily a fact question for the ALJ. See Myers,
3. Threats that an employer should stay out of a worker's way or he would be sorry constituted misconduct in
Henecke v. IDJS, 533 N.W.2d 573 (Iowa App. 1995). The Court stated
that an employer has the right to expect decency and civility from its workers and that evidence of threats could be found
both in words and body language.
4. Practice tip: ALJs often hear the excuse that "everybody" at the workplace uses foul language. Please provide any
applicable written policy and evidence of consistency or inconsistency in its enforcement.
1. Off premises during lunch hour, one worker assaulted
another for alleged rumors spread at work by the co-worker. Noting the lack of evidence of negative impact at the work
place plus the fact that the worker was not discharged until the end of the day the Court of Appeals allowed benefits.
See Diggs v. EAB, 478 N.W.2d 432 (Iowa App. 1991).
2. Typical analysis focuses first on whether the claimant was the instigator of the incident, whether or not the claimant
threw the first punch. If the claimant was not the instigator, the ALJ then typically looks for evidence of whether the
claimant could have retreated or whether the claimant fought as a matter of self-defense because there was no other
alternative. This approach comes from the Court of Appeals' analysis in
Savage v. EAB, 529 N.W.2d 640 (Iowa App. 1995).
F. Off-duty Conduct
1. Violation of a specific work rule, even off-duty, can constitute
misconduct. In Kleidosty v. EAB, 482 N.W.2d 416, 418 (Iowa 1992) the employer had a specific rule prohibiting
immoral and illegal conduct. The worker was convicted of selling cocaine off the employer's premises. The Court
2. In its analysis, the Court stressed the importance of a specific policy, even one which was stated only in terms of illegal or immoral conduct.
3. In light of Kleidosty, I question whether Diggs, supra, is still
G. Gross Misconduct – Iowa Code Section 96.5-2-b & c
1. If the claimant is discharged for an act constituting an
indictable offense, providing the claimant has been convicted of the offense or has admitted in writing to committing the
act, all wage credits earned prior to the date of discharge are cancelled.
2. An unemployment insurance case may be re-determined within five years of the original claim date in these
3. This is the sole exception to the rule that after-acquired information cannot be used. Of course, the employer must
have known of the act and discharged the claimant because of the act later determined to be the indictable offense.
H. Carelessness and Negligence
1. Lee v. EAB, 616 N.W.2d 661 (Iowa 2000). Claimant, a
snowplow operator for Mitchell County was discharged after two accidents which had happened in quick succession after
other accidents more remote in time. In lieu of discharge, claimant was offered a two-week suspension if he agreed to
submit to drug and alcohol testing. When Lee refused, he was discharged.
2. Court analysis focused on lack of evidence that the final two accidents were within claimant's control. Thus, there was no
final, current act.
3. Court also criticized the EAB's (and the ALJ's) reliance on the refusal to take the suspension and submit to testing as
evidence tending to show that he did not care about improving his performance.
4. The Board consistently holds that cash register errors, especially in high-volume establishments like convenience
stores and fast-food restaurants do not descend to that level of careless or negligence justifying disqualification.
5. Flesher v. IDJS, 372 N.W.2d
230 (Iowa 1985). Claimant who had received three prior warnings for
identical conduct was fired after failing for the fourth time to
follow security policies. This was held to constitute disqualifying
A. In General
1. Claimants who voluntarily leave employment without "good
cause attributable to the employer" are disqualified for benefits. See Iowa Code Section 96.5-1.
2. A claimant re-qualifies by working in and being paid wages for insured work equal to 10 times the individual's weekly
3. The claimant has the burden of proof in cases involving quits. See Iowa Code Section 96.6-2.
4. In general, a voluntary quit requires evidence of an intention to sever the employment relationship and an overt act
carrying out that intention. See Local Lodge #1426 v. Wilson
Trailer, 289 N.W.2d 698, 612 (Iowa 1980) and Peck v. EAB,
492 N.W.2d 438 (Iowa App. 1992).
5. In an unreported decision, the
District Court has ruled that a claimant with limited English skills
did not leave work voluntarily when he mistakenly believed that he had
6. Prior notification of the employer before a resignation for a
medical reason is required. The evidence must show that before
resigning the claimant 1) put the employer
on notice of the condition, 2) warned the employer that she or he may quit if the situation is not addressed and 3) gave
the employer a reasonable opportunity to address legitimate grievances. See
Suluki v. EAB, 503 N.W.2d 402 (Iowa 1993).
7. Prior notification of the employer before a resignation for other reasons is
not required. See Hy-Vee v. EAB, 710 N.W.2d (Iowa 2005).
B. Quits Deemed to be With Good Cause Attributable to the Employer
1. See in general 871 IAC 24.26
2. Substantial change in the contract of hire.
a. 871 IAC 24.26(1)
b. ALJs interpret this to mean substantial change in the conditions of employment.
c. In analyzing such cases the courts look at the impact on the claimant rather than the employer's motivation.
See Dehmel v. EAB, 433 N.W.2d 700 (Iowa 1988). Here the employer, faced with an economic downturn,
tried to avoid layoffs by reducing the hours of all employees. Dehmel quit because of the reduction
and eventually prevailed.
d. An employee acquiesces in a change if he or she does not resign in a timely manner. See
Olson v. EAB, 460 N.W.2d 865 (Iowa App. 1990).
e. A wage reduction pursuant to collective bargaining does not give an individual good cause attributable to
the employer to quit. The right of the individual to deal directly with the employer is surrendered to the
bargaining agent through the collective bargaining process. See Efkamp v. IDJS 383 N.W.2d 566 (Iowa
f. Other examples include unsafe, illegal or detrimental or intolerable working
C. Quits Without Good Cause Attributable to the
1. See 871 IAC 24.25
2. The regulations here are a laundry list derived from court decision and agency experience. Here are portions of the
a. Quits because of a lack of transportation.
b. Quits to move to a different locality or to accompany a spouse to a different locality.
c. Absence without contact for three days in violation of company policy.
d. Quits because of dissatisfaction with a known rate of pay.
e. Quits because of a lack of childcare.
f. Quits because of inability to work with supervisors or fellow workers.
g. Quits to take a vacation.
h. Quits after being reprimanded.
D. Quits to Avoid Violence
1. A claimant is not disqualified for resigning rather than
crossing a picket line in the face of real threats of violence. See Ames v. EAB, 439 N.W.2d 669 (Iowa 1989) overruling
Deere Mfg. Co. v. IESC, 90 N.W.2d 750 (Iowa 1958).
2. Mere speculation of violence is insufficient to justify quitting.
There must be some evidence would place a reasonable person in fear of violence.
3. This analysis has been used to allow benefits to an employee who quit due to domestic violence where some of
the confrontations and threats had occurred on company property. This extension has not been challenged in the
E. Quits to Accept Other Employment
1. See 96.5-1-a
2. In this situation separation from the first employer is not a disqualifying event, and the first employer is not charged for
benefits paid to the claimant.
3. The record must establish the existence of a bona fide offer of employment which the claimant accepted before
resigning and for whom the claimant performed services.
4. If the claimant requests benefits between the two jobs, the ALJ will inquire if the claimant had the opportunity to work up
to the time the new job began.
F. Temporary Employees of Temporary Employment
1. See Iowa Code Section 96.5-1-j.
2. At the completion of an assignment with a temporary employment
firm, a claimant must contact the firm within three business days to
seek reassignment or face disqualification for benefits pursuant to
the section listed above.
3. This is applicable only if the firm has notified the worker in
writing at the time of employment with the firm of his or her
responsibility to do so. The document must be separate from any
contract of employment, and the firm must give a copy of the notice to
4. In the absence of strict compliance
with the terms of Iowa Code Section 96.5-1-j, the provisions of 871
IAC 24.26(19) remain in effect. That is, an election not to seek
further assignment is not construed as a voluntary quit.
III. Refusal of Work or
Refusal of Recall
A. The general rule is that an
individual is disqualified for benefits if he or she refuses a
suitable offer of work, referral by the agency to suitable work or a
recall to suitable work. See Iowa Code Section 96.5-3.
B. There is a two-part test for suitability.
a. One hundred
percent of average weekly wage in the
base period if work is offered in the first five weeks of
percent if offered during the sixth through twelfth weeks of
percent if offered in the thirteenth through eighteenth weeks of
percent if offered after the eighteenth week.
2. Job suitability.
a. Degree of
risk to health, safety and morals.
Individual's physical fitness.
training and experience.
of finding employment in claimant's normal occupation.
1. An individual need not accept a job
paying less than the federal minimum wage.
2. Refusal to fill a vacancy caused by a strike or lockout will not
result in disqualification.
3. Refusal of a job whose pay, hours, or conditions are
"substantially less favorable" than those prevailing for
similar work in the locality will not result in disqualification.
4. Refusal of a job that would require union membership, require
resignation from union membership or require a promise to refrain from
union membership will not result in disqualification.
5. An offer of temporary work is not
per se unsuitable. Suitability of work is a question of fact, and the
temporary nature is one fact to be considered in the evaluation. See Norland
v. Iowa Department of Job Service, 412 N.W.2d 904 (Iowa
D. Technical rules - See 871 IAC 24.24.
1. There must
be a bona fide offer of work for an actual vacancy, specifying such
things as duties, rate of pay, days and hours of work, etc.
2. The offer
must be made by "personal contact."
registered letter constitutes personal contact only for recall to
4. Both the
offer and the refusal must occur during a claimant's benefit year for
the agency to have jurisdiction to determine if the refusal was a
withstanding number one above, an individual who willfully discourages
a prospective employer from making a suitable offer will be
disqualified for benefits.
E. Penalty for refusal of suitable
a claimant must re-qualify by earning ten times his or weekly benefit
amount in wages for insured work.
however, the person refuses work for a reason that makes him or her
ineligible for benefits under Iowa Code Section 96.4-3, denial of
benefits is on a week-by-week basis. See 871 IAC 24.24(4).
1. The claimant is ill or injured and medically unable to work. 2. The
claimant lacks transportation, adequate childcare, etc., and so is
unavailable for work.
IV. Issues Involving
A. An individual discharged for
misconduct from part-time employment is completely disqualified for
benefits until re-qualifying by earning ten times his or her weekly
benefit amount in wages for insured work. See Iowa Code Section
B. An individual who quits part-time
employment without good cause attributable to the employer can receive
unemployment insurance benefits if he or she has sufficient wage
credits from other employers to be monetarily eligible. Wages from the
part-time employer the claimant left voluntarily will not be used for
computing future benefits until the individual has earned subsequent
wages for insured work equaling ten times his or her weekly benefit
amount. See Welch v. IDJS, 421 N.W.2d 150 (Iowa app. 1998) and
871 IAC 24.27.
C. Partial unemployment.
1. The general rule is that an
individual working less than his or her regular hours and earning
less than his or her weekly benefit amount plus $15.00 is partially
unemployed. See Iowa Code Section 96.19-38-b.
2. Questions arise when a part-time employee's workweek fluctuates.
Fact pattern tend to follow one of three scenarios:
individual works a set number of hours per week year round has his or
her hours reduced.
individual's hours of work fluctuate seasonally.
individual's hours vary week by week as dictated by business
3. ALJ's will look for evidence to establish which scenario a
particular case most resembles. The evidence may include a written
agreement between employer and employee as to the hours of work, past
practice and, especially for scenario number two, whether the number
of hours offered since the present claim for unemployment insurance
benefits is less that the number of hours of work offered a year
V. Temporary and On-Call
A. Temporary employment.
1. The general
rule is that an individual who is hired to work for a specific period
of time or until a completion of a specific task fulfills his or her
agreement when each job is completed. An election not to report for
further assignment is not considered a quit. See 871 IAC 24.16(19).
a. The general rule does not apply to substitute employees of
b. The rule does not apply to temporary employees of temporary
employment firms who have complied with the provisions of Iowa Code
Section 96.5-1-j. See Section II F.
B. On-Call Employment.
workers who make themselves available for work from only one employer
and who do not accept other employment are not available for work and
are not eligible for unemployment insurance benefits. See 871 IAC
individual whose wage credits consist entirely of wages for
on-call work is not considered to be unemployed. See 871 IAC
VI. Work Stoppage Incident
to a Labor Dispute
A. See Iowa Code Section 96.5-4 and 871
IAC 24.33 & 34
B. In general, unemployment insurance benefits are
denied to striking
workers if the evidence establishes that a work stoppage exists.
1. A lockout
is not a work stoppage if the workers
are willing to continue work under the status quo past the end of
the contract while negotiations continue but the employer is unwilling
to do so. See Alexander v. EAB, 420 N.W.2d 812 (Iowa 1988).
2. Stoppage of
work refers to curtailment of employer's operations, not the
claimants' absence from work. See Crescent Chevrolet v. IDJS,
429 N.W.2d 148 (Iowa 1988).
3. A work
stoppage ends when the employer's operations return to a substantially
normal basis which may be before or after termination of the labor
dispute. Crescent Chevrolet, supra.
4. A stoppage
may occur due to a strike in one department even if the employer
continues operations by replacing strikers temporarily with workers
from other departments. Crescent Chevrolet, supra.
5. The test
for whether an individual is covered by this section of the law is not
whether the claimant belongs to the union but whether the claimant is
in the bargaining unit which is participating in, financing or
directly interested in the labor dispute. Section 96.5-4-a & b.
replacement of a striking worker severs the employment relationship
and ends the labor dispute disqualification. See Bridgestone/Firestone
v. EAB, 570 N.W.2d 85 (Iowa 1997).
VII. Health-Related Issues
No Separation from Employment
1. An individual must be able to work
in order to be eligible for unemployment insurance benefits. See Iowa
Code Section 96.4-3.
2. The claimant must establish that she or he is physically and
mentally capable or work in gainful employment, whether or not in the
individual's customary occupation. See Geiken v. Lutheran Home for
the Aged, 468 N.W.2d 223 (Iowa 1991) and 871 IAC 24.22(1)b.
3. Employers must make reasonable accommodations for employees with
disabilities. See Sierra v. EAB, 508 N.W.2d 19 (Iowa 1993) and Foods,
Inc. v. Iowa Civil Rights Commission, 318 N.W.2d 162 (Iowa
4. An employer who will not do so due
to its policy of not providing light-duty work to its employees may
lose a case in which a claimant with a medical restriction can
establish his or her ability to perform some job available in the
local labor market.
B. Issues Involving Separation
1. Quit or Discharge?
a. A separation due to medical reasons is not always a quit. In Wills
v. EAB, 447 N.W.2d 137 (Iowa 1989), the Supreme Court considered
the case of a pregnant CNA who went to her employer with a physician's
release that limited her to lifting no more than 25 pounds. Wills
filed a claim for benefits after the employer did not let her return
to work because of its policy of never providing light-duty work.
Reversing the agency, the Supreme Court ruled that Wills became
b. Earlier, in Hedges v. IDJS,
368 N.W.2d 862 (Iowa App. 1985), the Court of Appeals dealt with a CNA
who requested and received a medical leave of absence in May and again
after two days of work in August due to heart and emotional problems.
When she attempted to return to work in November with a lifting
restriction, the employer refused to reinstate her. Although the Court
did not consider whether Hedges voluntarily separated from employment,
its statement of facts shows that she initiated the May and August
separations. It also did not address the question of whether the
employer was required to make a reasonable accommodation, but affirmed
a disqualification based on Iowa Code Section 96-5-1-d, which deals
with voluntary separations from employment for medical conditions
unrelated to work.
c. This is a developing area of the
law, currently fact-driven while we await further reported decisions.
2. Quits Due to Medical Conditions
Caused or Aggravated by Employment
a. Where illness or injury directly
connected to the employment makes it impossible for an individual to
continue in employment because of serious danger to health, a
resignation is deemed to be for good cause attributable to the
employer even if the employer is free from negligence and all
wrongdoing. See Raffety v. IESC, 76 N.W.2d 787 (Iowa
b. Raffety has been expanded
to cover situations in which an existing medical condition is
aggravated by working conditions. Shontz v. IESC, 248 N.W.2d
88 (Iowa 1976).
3. Quit Due to Medical Condition
Unrelated to Employment
a. Resignation due to a medical
condition unrelated to the employment is not considered to be for
good cause attributable to the employer. Wolf's v. IESC 244
Iowa 999, 59 N.W.2d 216 (1953).
b. Iowa Code Section 96.5-1-d,
enacted after the Wolf's decision gives a claimant another
method of re-qualifying after voluntary separation due to a medical
condition unrelated to the employment. If the claimant returns to
the employer with a release to return to work and the individual's
regular work or comparable suitable work is not available, the
individual may receive unemployment insurance benefits.
c. In the case of a medical condition
unrelated to the employment, the physician's release must be
unconditional. See Hedges, supra.
4. Choice of Doctor
There is no provision in Iowa Code
Chapter 96, in agency regulations or in case law giving the employer
the right to choose the doctor. Thus, if a claimant's physician
recommends resignation due to a work-related injury while the
company doctor does not, the agency will allow benefits.
5. Quit as Part of Workers' Comp
a. No Iowa cases are on point, but it
is a situation that comes up from time to time.
b. In Edward v. Sentinel Management
Co., 611 N.W.2d 366 (Minn. App. 2000) claimant resigned as part of a
worker's comp settlement package. Minnesota court denied benefits
noting that the claimant could have continued working while pursuing
his claim. The evidence in the case established that the claimant
could still perform his work and was doing so while the negotiations
continued. The court found the situation analogous to a person
negotiating for early retirement while work was still available.
c. Distinguish this from the
situation in Larson v. Michigan Employment Sec. Com'n,
140 N.W.2d 777 (Michigan App. 1966) in which the Michigan court
allowed benefits to a severely injured worker who could not perform
his former duties and for whom the alternatives were remaining
employed with no income or resigning in order to receive income.
d. Iowa ALJs tend to follow these
lines of analysis and make similar distinctions.
VIII. Pensions, Vacation
Pay, Severance Pay and Holiday Pay
A. Pensions are deductible dollar
for dollar from unemployment insurance benefits to the same extent
that a base period employer has contributed to the pension fund. See
Iowa Code Section 96.5-5-c.
B. Social security pensions are not
C. Vacation pay given to a claimant
in connection with the separation from employment is deducted dollar
for dollar from unemployment insurance benefits with the following
1. Unless the employer makes a timely
designation of another period, all vacation pay is attributed to the
first week of unemployment.
2. Within ten days of the mailing of
the Notice of Claim, an employer may designate a different period of
time to which the vacation pay must be attributed. See Iowa Code
3. The wording of Iowa Code Section
96.5-7 creates problems for claimants and employers because
claimants normally file their first weekly claims before they or IWD
know how the employer will report the vacation pay.
D. Severance pay is deducted dollar
for dollar from unemployment insurance benefits.
E. Holiday pay is treated as regular
wages and is deductible from unemployment insurance benefits
according to the formula found in 871 IAC 24.18. Thus if the holiday
pay is less than 25% of the weekly benefit amount there will be no
reduction in benefits. If the holiday pay exceeds the weekly benefit
amount plus fifteen dollars, no benefits will be paid. Holiday pay in
between these two amounts will result in payment of partial benefits.
IX. Drug Testing
A. Eaton v. EAB, 602 N.W.2d 553
(Iowa 1999) is the leading case. Eaton had been discharged for
violating a no smoking policy. He was hired back under a last chance
agreement, approved by his union, that required, among other things,
that he "submit to random drug testing" at the company's
request. After missing one day of work due to a foot problem, the
company requested a drug test. It was positive for marijuana and
cocaine. The ALJ and the EAB denied benefits, reasoning that the last
chance letter was a waiver of the protections offered by Section
730.5. The Court disagreed, finding that the provision in the last
chance letter was unenforceable because it violated the statute.
B. In Harrison v. EAB, 659 N.W.2d 581
(Iowa 2003), the Supreme Court ruled that the employer did not even
substantially comply with the notice requirements of Iowa Code Section
730.5(7)(i)(1). The claimant was not informed in writing of this right
to have a second confirmatory test done at his expense. He was not
told that he could choose the laboratory to conduct the test or that
he had seven days to make his decision. He was also given a
significantly inflated price for the test.
C. Another issue that comes up
frequently is whether the test is given pursuant to federal or state
law. The requirements differ. We will need evidence of which law
governs. It would be helpful to provide us with a copy of the federal
regulations if the test is one mandated by federal law.
D. Selection Provisions of Iowa drug
testing law for private employers.
1. Reasonable Suspicion Testing
- §730.5(1). Must show at least one of the following:
a. Observable phenomena;
b. Abnormal/erratic behavior;
c. Report from reliable/credible
d. Evidence of test tampering;
e. Caused accident resulting in
OSHA reportable injury or property damage more that $1,000.00; or
f. Evidence of drug activity while
working or on premises.
2. Random Testing -
Persons selected by computer-based
random number generator process by independent entity. Pool may be
subset of all employees, e.g., safety-sensitive positions.
3. Treatment Testing
During or upon completion of drug or
4. Testing Protocol
a. Timing/Costs - §730.5(6)
1. During or immediately
before/after scheduled work period; and
2. All costs paid by the employer
(excluding cost of testing of secondary sample).
b. Procedures - §730.5(7)a
1. Sanitary and privacy
protecting conditions (if urine, secured by visual inspection,
c. Split samples at time of
collection - §730.5(7)b
1. If urine, primary sample must
be at least 30 ml., secondary sample must be at least 15 ml.
2. Second sample stored at least
45 days after a positive test.
d. Opportunity to provide
information that might affect test results (may be offered by
medical review officer after initial positive results) -
§730.5(7)c(2). The employer must inform employee of drugs to be
e. Confirmatory Drug Testing
1. Must have confirmed positive
testing by certified laboratory before disciplinary action.
2. Confirmation test must use
different chemical process than an initial screen, e.g.,
chromatographic technique (gas chromatography/mass
spectrometry), except that the employer's policy can provide for
alcohol testing by qualified devices and personnel.
f. Result Reporting -
§730.5(7)i(1) and (2)
1. If confirmed positive result
received by the employer, the employer must notify employee by
certified mail, return receipt requested of the results of the
test and the right to request and obtain a confirmatory test of
the secondary sample.
a. Certified lab of the
b. Fee payable by the employee
for expenses only, comparable to costs of employer's initial
c. Seven days from date of
mailing of retesting rights notice to pay and request retesting.
5. Policies - §730.5(9)
a. Must be written.
b. Uniform standards for actions
that will be taken in case of confirmed positive test or refusal
to submit to testing.
c. Awareness program.
1. Inform all employees of EAP/post
2. Have resource file of treatment
programs, mental health providers, etc.
d. If alcohol testing included,
must specify alcohol concentration for violation, less than .04.
e. Rehabilitation - if employee
with positive alcohol test has been employed with the employer at
least 12 months (within the last 18 months) and the employer has
more than 50 employees, policy must provide for rehabilitation
(with allocation, limitations of costs). Can discipline/discharge
for failure to comply with rehabilitation.
f. Training of supervisors -
1. Two hours initially and one hour
thereafter annually at a minimum.
2. Recognition of evidence of
alcohol and drug abuse.
3. Referral to EAP or other
1. An employer's potential
liability for monetary damages and reinstatement of an employee
improperly fired for failing a drug or alcohol test under Iowa
Code Section 730.5 is beyond the jurisdiction of IWD. Employers
have been sued successfully in court for discharging employees
under these circumstances while not following the provisions of
the statute. Employers should obtain the assistance of legal
counsel when establishing and implementing a drug test policy.
2. In Tow v. Truck Company of
Iowa, 695 N.W.2d 36 (Iowa 2005) the Supreme Court affirmed a
money judgment against an employer who offered work to a
prospective employee whose drug test was "inconclusive"
only if the employee paid for the retest himself.
3. Section 730.5 establishes only
to private employers. It does not apply to employers in the public
4. Some employers, for example
those in the transportation industry, may be subject to federal
law not covered in this outline. See, for example, 49 CFR, Part
X. Procedural Issues and Matters
A. Unemployment Insurance hearings
before ALJs from Workforce Development or the Division of
Administrative Hearings are contested case proceedings pursuant to
B. The rules of evidence are
found in Section 17A.14(1).
1. Irrelevant, immaterial or unduly
repetitious evidence "should" be excluded.
2. There is not residuum rule. All
evidence may be hearsay.
3. In evaluating hearsay, the ALJ
should conduct a common sense evaluation of:
a. the nature of the hearsay,
b. the availability of better
c. the cost of acquiring better
d. the need for precision and
e. the administrative policy to
be fulfilled. Schmitz v. Iowa Department of Human Services,
461 N.W.2d 603, 607 (Iowa App. 1990).
4. Having said that, let me hasten
to add that hearsay evidence, even though admissible, is often not
the best evidence. If possible, have witnesses who have first-hand
information participate in the hearings, especially if you have
the burden of proof.
C. Amendment to Chapter 17A
1. An amendment to Section 17A.10
effective July 1, 1999, provides that contested cases in which the
agency is a named party or real party in interest shall be heard
by the agency director or by an ALJ from the Division of
2. In the case Fisher v. Board of
Optometry Examiners, 476 N.W.2d 48 (Iowa 1991), the Supreme Court
of Iowa concluded that an agency is a party to a contested case if
it has the legal right to participate in the contested case and
actually seeks to do so.
3. Consequently, IWD adopted a
regulation found at 871 IAC 26.14(1) whereby it transfers to DAH
those cases in which it is the employer and those cases in which
any subdivision of the agency actually desires to participate in
the contested case hearing.
4. We do not, however, transfer
cases on demand unless the moving party can establish that all
ALJs must recuse themselves; and we do not transfer a case
automatically if a party indicates it will subpoena an agency
5. IWD's ALJs are subject to the
Code of Administrative Judicial Conduct mandated by Chapter 17A.
6. By rule, the agency requires
that all newly hired ALJs be licensed to practice law in Iowa.
7. See 871 IAC 26 for IWD's rules
of procedure for contested cases.
1. Iowa Code Section 96.6-2 allows
ten calendar days for filing protests and appeals from
2. The Supreme Court of Iowa has
ruled that the time limit for filing appeals is jurisdictional.
See Franklin v. IDJS, 277 N.W.2d 877, 881 (Iowa 1979). Following
that reasoning, we, the EAB and the District Court have ruled that
the time limit for protests is also jurisdictional. Thus, in the
absence of a timely protest or timely appeal, the agency does not
have jurisdiction to rule on the merits of the case.
3. The Code of Iowa gives an
automatic extension until the next regular business day if the
last day for filing falls on a Saturday, Sunday or other legal
4. The time limits do not apply if
the party does not receive the Notice of Claim or fact-finding
decision in time to file a timely protest or appeal. The question
becomes whether the party filed within a reasonable amount of time
after learning of the Notice of Claim or fact-finding decision.
5. The statute gives thirty days to
appeal a statement of charges or, in the case of a reimbursable
employer, a billing statement. This applies if, and only if, the
employer did not receive a Notice of Claim.
6. If filed by mail, an appeal must
be postmarked by the final day. If filed by any other means, the
agency must receive it by the end of the final day.
7. The agency and the EAB, again
following the rationale in the Franklin case, consider these time
limits to be jurisdictional.
XI. Special Challenges in Handling UI Cases
Even with our high volume of
hearings, we must continue to meet the U.S. Department of Labor's
requirement of resolving 60% of all our cases within 30 days, 85% of
all our cases within 45 days and 95% of all our case within 75 days.
Without formal pleadings and with only a sketchy record from
fact-finding, we often know precious little about a case as we start
We strive to be a real people's
court, not to be confused with television's version. Institutionally
we strive to be as informal as possible while maintaining decorum in
the hearing room as well as the appearance and reality of due
process. Prohibitions on ex parte communications limit what the
other ALJs or I may say to you about a pending hearing. Remember
there is no prohibition on general discussions on what we can do to
improve our system and its components for the benefit of the people