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Business owner disputes benefits

Harvest Foods owner Dan Berger is challenging  an administrative law judge's decision to grant unemployment benefits to a former employee.   
 (Brian Plonka / The Spokesman-Review)
Harvest Foods owner Dan Berger is challenging an administrative law judge's decision to grant unemployment benefits to a former employee. (Brian Plonka / The Spokesman-Review)

Kettle Falls grocer Dan Berger said he does not understand how former employee Mitchell Ross, replaced because he was in jail, could qualify for unemployment benefits.

Yet the Washington state Employment Security Department accepted Ross’s claim, and an administrative law judge last month affirmed that decision.

Next week, Berger said, he will ask the department to review that ruling.

“Something is wrong here,” said Berger. “I don’t think I should be responsible for him going to jail.

“I don’t want to be paying his unemployment.”

Berger said he knew Ross had some scrapes with the law when he was hired in August 2007. He said work schedules at Harvest Foods were adjusted so Ross could attend required counseling.

Berger said he was unaware there was an outstanding King County warrant out on Ross for driving under the influence. Ross did not show up for work at Harvest Foods on Monday, Feb. 3.

His girlfriend had called the grocery the prior Saturday to report Ross had been picked up on the warrant. When Berger called the Stevens County jail, deputies confirmed his employee was being detained. They did not know how long Ross might be held in Seattle.

On Feb. 7, Berger hired someone to replace Ross. Two weeks later, Ross returned to Harvest Foods to reapply for his job. He also applied for, and received, unemployment benefits starting after his release from jail.

Berger objected, but the Employment Security Department and Administrative Law Judge Bruce Herkamp concluded Ross had been dismissed for conduct not related to his work, and so could collect unemployment.

Ross could not be reached for comment.

During a department fact-finding, Ross says he quit – by way of his girlfriend’s phone call to the store – but also says he would not have quit had he not been jailed.

Herkamp ruled the evidence that Ross intended to quit was insufficient. In effect, he wrote, Berger fired Ross.

“My jaw hit the floor,” Berger said. “This isn’t what happened. This isn’t how it happened.”

But a spokeswoman for the ESD Office of Administrative Hearings, Stephanie Croom Williams, said rulings dating back to 1972 – including one involving Cowles Publishing Co., owner of The Spokesman-Review – support Herkamp’s decision. Williams is also an administrative law judge.

Because other judges might look at the same facts and come to a different conclusion, Williams said she would encourage Berger to seek a review. She also suggested he ask ESD not to hold the cost of benefits paid Ross against Harvest Foods, which could have its unemployment insurance premiums raised.

Berger said Ross was re-employed within a few weeks of his release from detention. The minor cost to him is less important than the principle, he said, adding that employers may be less willing to hire individuals with a troubled past if that history could potentially catch up with them.

“We felt we were pretty decent to the guy,” Berger said.

ESD spokeswoman Sheryl Hutchison said much of the controlling unemployment law is federal and difficult to administer.

“What may not seem fair may still be legal,” she said.

Rep. Cary Condotta, the ranking Republican on the House Commerce & Labor Committee, said he was briefed on the Ross case but had not seen the documentation. Herkamp’s ruling may have been the correct one, he said, but if so it may point to a gray area lawmakers might want to examine.

ESD has been doing a better job scrutinizing unemployment claims, Condotta said, but added, “It’s an imperfect science.”