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

DEAN S OFTEDAHL, Employee

WASHINGTON GROUP INTL INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 02002799JV


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 September 13, 2002
oftedde . usd : 132 : 8  MC 651.3

/s/ David B. Falstad, Chairman

James A. Rutkowski, Commissioner

/s/ Laurie R. McCallum, Commissioner


MEMORANDUM OPINION

The employer has petitioned for commission review of the adverse appeal tribunal decision that found the employee was discharged from his employment but not for misconduct connected with his work. The employer states that the record will reflect that the company policy was provided to the employee at the time of hire, and provided that a new worker would be tested for substance abuse as a condition of employment. The employer failed to establish, however, that the employee used drugs after being notified of the employer's policy or after beginning work for the employer. Therefore, as the ALJ noted, the employer failed to establish that the employee engaged in misconduct connected with his work. The commission has noted in the past that metabolites for some drugs can stay in the system for up to 30 days and therefore a positive test within the first 30 days of employment does not establish post-hire use, absent admission by the employee of such use. See, Castona v. Kelly Services, Inc., UI Dec. Hearing No. 01000795WR (LIRC May 24, 2001). There was no evidence presented to establish that the employee admitted to drug use after beginning his employment with the employer. For these reasons, and for the reasons set forth in the appeal tribunal decision the commission affirms that decision.

cc: 
Sheakley Uniservice, Inc.
Jack P. Martin, Project Manager


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uploaded 2002/09/20