Wis.LIRC UC Decision: Hirokane, Richard - December 21, 2001 - MC 652.4 - Drugs, alcohol - Testing - Proof - hearsay, chain of custody, Dept. forms; PC 714.06 Evidence, Documentary evidence - where employe did not raise objection at hearing to fact that only a faxed copy rather than the original of certified drug form was introduced, or assert that the copy was fraudulent or had been altered, ALJ erred in refusing to admit it because it was a copy (result affirmed, however, as employer failed to prove chain of custody)

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

RICHARD M HIROKANE, Employee

WAL MART ASSOCIATES INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 01402199GB

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, except that it makes the following modifications:

Delete the final sentence of the first full paragraph and the first sentence of the following paragraph on page 3, and insert therefor:

"The employer attempted to meet this burden by submitting the department's drug testing form. However the chain of custody portion of the form, which was completed by the person who was present when the sample was given, demonstrates that the result cannot be relied upon to prove misconduct in this case. The individual certifying the chain of custody, and therefore integrity of the sample, indicated on the form that she did not know if the employee saw the sample sealed and that he did not initial the seal afterwards. These steps are required to guarantee that the sample tested belongs to the individual involved. Since the chain of custody was not maintained in this case, the results cannot be relied upon as accurate and therefore cannot be used as the sole basis for a finding of misconduct. It does not meet either departmental or due process standards."

DECISION

The decision of the administrative law judge, as modified, is affirmed. Accordingly, the employee is eligible for benefits beginning in week 20 of 2001, if otherwise qualified.

Dated and mailed December 21, 2001
hirokri . umd : 178 : 8 MC 652.4 PC 714.06

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

In his decision, the ALJ did not accept the employer's certified drug form because it was a copy. He stated that where the result is disputed, the employer must provide the certified original copy of the form. In this case, the exhibit was a faxed copy of the form. The commission disagrees with this conclusion. In this case, the employee did not object to the form itself or assert that it was fraudulent or had been altered. He was offered the opportunity to object after the hearing and he did not. Instead, he denied that it was accurate since he maintained that he had not ingested illegal drugs. He further argued that he may have been contaminated by second hand smoke. The only thing an original copy would show that a copy could not would be that the form had been altered. Without a party raising that issue, the commission sees no objection to accepting the copy in this case. The commission therefore modifies the ALJ's rationale and affirms the result due to the employer's failure to prove the chain of custody of the sample was maintained.

cc: Wal-Mart Associates, Inc. - Green Bay, Wisconsin 54311

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uploaded 2002/01/07