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

CHERAY A LOVE, Employee

FSQ INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 05602985MW


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 July 29, 2005
lovech . usd : 145 : 1  MC 652.4  MC 653.1

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

MEMORANDUM OPINION

In its petition for commission review the employer asserts that it disagrees with the appeal tribunal decision and would like to file an appeal. The employer asserts that the employee was discharged for testing positive for marijuana. The employer argues that it presented evidence that would demonstrate that the employee had extremely high levels of THC in her system. The employer argues that this should be considered evidence to support a conclusion that the employee was under the influence. The commission does not have the expertise to make such a determination. The employer failed to present any expert testimony or other evidence upon which the commission could base an inference that the employee was under the influence based on the levels reported in the drug test. Further, the hearing office sent the employer, on May 4, 2005, a UI Drug Testing Report. The employer did not return the forms but instead submitted copies of paperwork filled out by the lab it selected to have the test performed at. The testing laboratory sent a sample to a laboratory in Tennessee and that lab returned only an uncertified printout of what is purported to be the employee's drug test results.

Under Wis. Stat § 108.09(4m), the contents of verified or certified reports by qualified experts constitute prima facie evidence as to the matter contained in the reports in any proceeding under this section, insofar as the reports are otherwise competent and relevant, subject to such rules and limitations as the department prescribes. Wis. Admin. Code DWD 140.16 provides that, while hearsay evidence is admissible if it has reasonable probative value, no issue may be decided solely on hearsay evidence unless the hearsay is admissible under ch. 908, Stats. CJW, Inc. v. John Goodwin and LIRC, Case No. 04-CV-1704 (Wis. Cir. Ct., Racine Co., February 22, 2005).

The employer did not return the department's certified form provided by the laboratory. The commission is not permitted to make any ultimate finding solely on the basis of hearsay. The employer may not rely solely upon hearsay to establish a critical fact to its case.

Without the certified departmental form, the necessary indicia of reliability for the test result are not present. Jewson v. Home Depot USA Inc., UI Dec. Hearing No. 02005077MD (LIRC May 7, 2003); Shada v. Hondo Inc., UI Dec. Hearing No. 99602009RC (LIRC June 11, 1999); Seabrooks v. The Geon Co., UI Dec. Hearing No. 00604875MW (LIRC Mar. 1, 2001).

The employer further asserts that State law prohibits the employer form employing an individual who uses recreational drugs. However, the employer did not indicate specifically which guidelines prohibit it from hiring any worker who uses illegal drugs. The employer's drug policy states that the employer is interested in maintaining a safe, healthy and efficient workplace. It does not indicate that it is prohibited by State law from hiring a worker who uses illegal drugs off duty. Nor can the commission infer that from the employer's policy as the policy mentions only being "under the influence" at the workplace and does not indicate that a worker with a positive test result will be discharged.

cc: W. Jonathan Comisiak



[ Search UC Decisions ] - [ UC Digest - Main Index ] - [ UC Legal Resources ] - [ LIRC Home Page ]


uploaded 2005/08/01