STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION
P O BOX 8126, MADISON, WI 53708-8126 (608/266-9850)

JEROME J CASTONA, Employee

KELLY SERVICES INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 01000795WR


An administrative law judge (ALJ) for the Division of Unemployment Insurance of the Department of Workforce Development issued a decision in this matter. A timely petition for review was filed.

The commission has considered the petition and the positions of the parties, and it has reviewed the evidence submitted to the ALJ. Based on its review, the commission agrees with the decision of the ALJ, and it adopts the findings and conclusion in that decision as its own.

DECISION

The decision of the administrative law judge is affirmed. Accordingly, the employee is eligible for benefits, if otherwise qualified.

Dated and mailed May 24, 2001
castoje . usd : 132 : 1   MC 618  MC 651.3 

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

In the petition for review the employer requests a new hearing because its representative was not available for the original hearing. While the commission does have the discretion to order the taking of additional evidence, that authority is exercised only in a few exceptional circumstances. The "confirmation of timely appeal" document sent to the parties notified the parties that if a representative would be unavailable the party should immediately contact the hearing office with the dates of unavailability. The file does not reflect that the employer did so or that the employer requested a postponement prior to the hearing. Therefore, further hearing will not be granted.

The employer did not prove that the employee engaged in use of marijuana after the employment relationship began. The employee owes no duty to the employer prior to the existence of the relationship. The commission has noted in past cases that metabolites for some drugs can stay in the system for up to 30 days and therefore a positive drug test within the first 30 days of employment does not establish post-hire use and therefore is not connected with work, absent an admission of post-hire use by the employee. Brown v. Ho Chunk Nation, UI Dec. No. 95002354BO (LIRC Jul. 31, 1995). This is also the department's policy. See UI Benefits Manual, Vol. 3, Part VII, Chapter 2.  The employee testified that he did not use drugs after hire.

For the above reasons, and for the reasons set forth in the appeal tribunal decision, the commission affirms that decision.

cc: Kelly Services


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uploaded 2001/05/25