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

ROBERT J FIEBRINK, Employee

ELITE STAFFING SERVICE INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 04602168MW


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 makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employee worked for about four months as a laborer for the employer, an operator of a staffing business. His last day of work was February 6, 2004 (week 6). He was thereafter paid benefits in an amount of $1,020.

The employer assigned the employee to a temp to perm assignment. The employee was to work 540 hours for the employer. He was then to take a drug test, and if he passed the test he would be hired permanently by the client. The employer explained that its policy was that the employee was to agree to voluntarily submit to a drug test and if the employee refused to take the test or failed he might be immediately discharged. The employee submitted to a drug test. The client then called the employer and reported that the employee failed the drug test, and the client could no longer use him. The employer was "amazed" that the employee did not pass the test. The employer asked the employee what he had been doing, and the employee stated he did not remember taking any drugs.

The employer testified that the drugs that the employee allegedly tested positive for would only be retained in his system for a few days, and he had to take these drugs just before the test. The employer found this incredible, and testified that the employee knew about the test on the day he started. The employer explained that because of worker's compensation and other issues, it could not offer the employee an alternative position after the positive test result.

The employee testified that he does not "do" drugs. The employee stated he did not remember doing any drugs and had no history of drug use.

The commission does not require eyewitness testimony to demonstrate that a worker tested positive for alcohol or illegal drugs. Instead the commission will allow a party to submit a certified drug testing report provided by the department. This report has two parts, a chain of custody section and a test result section. The employer returned only one part of the form, specifically the test result section.

In this case the employee denied using illegal drugs. The employer supported the employee's testimony by indicating the owner was surprised the employee failed, given the employer knew exactly when the test would be. The employee allegedly tested positive for cocaine metabolites, and as pointed out by the employer, he would have had to have engaged in cocaine use shortly before the test was given in order to test positive. It is true that even a person who uses drugs may deny having used them, and it is very possible that an employer can be wrong in his or her assessment of the likelihood that a particular worker uses drugs. However, the allegation of illegal drug use is a very serious matter and the employer is required to provide reliable evidence that this occurred. While the sample that was tested did test positive, the employer failed to provide chain of custody evidence to ensure that the sample was the employee's, and that the sample was not tampered with in any way. As such, the employer failed to establish that the employee used illegal drugs.

The commission therefore finds that in week 6 of 2004, the employee was discharged but that his discharge was not for misconduct connected with the work for the employer, within the meaning of Wis. Stat. § 108.04(5).

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employee is eligible for benefits beginning in week 6 of 2004, if otherwise qualified.

Dated and mailed October 22, 2004
fiebrro . urr : 145 : 2   MC 652.4

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner





MEMORANDUM OPINION

The commission did not discuss witness credibility and demeanor with the ALJ who held the hearing but reverses because it reached a different legal conclusion based on the more or less undisputed evidence in the record.

NOTE: The commission notes that there was a discussion of the drug testing form on page 2 of the synopsis, revealing that there were questions about the chain of evidence. The commission could not determine whether the employer alleged that the chain of custody form was in fact faxed to the hearing office. The testimony suggests that the employer did fax all the information it had, but that the chain of custody form was not part of that material. Evidently the lab did not return this part of the drug test form to the employer.


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uploaded 2004/11/03