GARY W HAYES, Employee

WILDE MOTORS INC, Employer

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:

The employee worked 1.5 years, most recently as a parts advisor, for the employer, an automobile dealership. His last day of work was July 20, 2004 (week 30).

The issue is whether the employer sustained its burden to prove that the actions for which the employee was discharged constitute misconduct connected with his employment.

The employee was discharged for allegedly failing a post-accident drug test, in violation of the employer's drug policy, by testing positive for cocaine metabolites.

In correspondence to the employer dated August 30, 2004, the department stated as follows, as relevant here:

Section 108.09(4m) of the Wisconsin Statutes provides, in part, that at unemployment hearings, contents of certified reports by qualified experts shall constitute prima facie evidence, avoiding an expert appearing at the hearing.

If you want to offer drug and/or alcohol test rests as evidence, have the enclosed UI Drug Reports completed. Individuals who can attest to the accuracy of the information provided must certify these reports. Submit "Obtaining and Sealing the Specimen" report to the laboratory, clinic or person that took the specimen, and "Performing the Test Analysis" report to the laboratory, clinic or person that conducted the test(s). [emphasis in original]

Although the chain of custody form was properly completed and certified, the test analysis form was not. Instead, the employer offered at hearing pages 4 and 5 of exhibit #2. Although Dr. Josette Boukhalil-Laklak signed the test results on page 5 as the laboratory's medical review officer, she did not certify them, or indicate that she personally conducted or even observed the testing, even though the department's letter and the test analysis form itself explicitly put the employer on notice of the need for first hand certification.

The employer failed as a result to sustain its burden to prove that the employee had violated its drug policy by testing positive for cocaine metabolites. See, Goodwin v. CJW, Inc., UI Hearing No. 04600084RC (LIRC Aug. 4, 2004)(employer failed to sustain burden to prove misconduct where test analysis form not properly certified by individual with first hand knowledge of employee's drug test); Jewson v. Home Depot, Inc., UI Hearing No. 02005077MD (LIRC May 7, 2003)(employer failed to sustain burden to prove misconduct where test analysis form contained no certifying signature attesting to the validity of test results); Seabrooks v. The Geon Co., UI Hearing No. 00604875MW (LIRC March 1, 2001).

The commission concludes that, in week 30 of 2004, the employee did not voluntarily terminate work with the employer within the meaning of Wis. Stat. § 108.04(7)(a); but was discharged, within the meaning of Wis. Stat. § 108.04(5), and this discharge was not for misconduct connected with the employee's work.

The decision of the administrative law judge is reversed. Accordingly, the employee is eligible for benefits beginning in week 30 of 2004, if otherwise qualified.

Dated and mailed November 24, 2004
hayesga . urr : 115 : 1   MC 652.4

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

NOTE: The commission did not confer with the administrative law judge before reversing his decision, because its reversal was not based upon a differing view as to the credibility of witnesses, but instead upon a differing conclusion as to what the hearing record in fact established and upon a differing interpretation of the relevant law.

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uploaded 2004/11/29