Wis.LIRC UC Decision: Hill, Kenneth - December 9, 2004 - MC 652.5 - Drug, Alcohol rules - Testing - Alcohol - BAC threshold; MC 652.9 - Drug, Alcohol rules - Testing - Miscellaneous; PC 714.10 Evidence, Medical evidence -- no basis in record upon which to conclude that the informal swab test relied on by the employer here to prove employee had alcohol in their system at work was a reliable, scientifically accurate test - also noted that 20 minutes after, employee had a negative breathalyzer, which must be considered a more reliable test

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

KENNETH R HILL, Employee

SWIFT TRANSPORTATION CO INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 04608332MW

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 December 9, 2004
hillken . usd : 105 : 1 MC 652.5 MC 652.9 PC 714.10

James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

MEMORANDUM OPINION

The employer argues in the petition for review that the employee's discharge was for misconduct given the employee's positive test for alcohol. As the administrative law judge reasoned, however, the employer did not establish a competent foundation for reliance upon the positive test in question. The record indicates that the positive test was some kind of informal swab test, but there is no basis upon which to conclude that this is a reliable, scientifically accurate test. This is particularly the case here, since 20 minutes after the test in question the employee had a negative breathalyzer result from a test administered by local law enforcement personnel. The breathalyzer test must be considered more reliable than the swab test initially used. Given that negative test, the employer cannot be said to have met its burden of establishing that the employee had alcohol in his system when he reported to work the morning in question. For these reasons, and for those stated in the appeal tribunal decision, the commission has affirmed that decision.

cc: Employer's Advantage

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uploaded 2004/12/13