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

GEORGE E ROBERSON JR, Employee

JOHN Q HAMMONS HOTELS MANAGEMENT LLC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 06000928MD


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 in week 3 of 2006, if otherwise qualified.

Dated and mailed June 15, 2006
roberge . usd : 132 : 4   MC 651.2  MC 653.1

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

MEMORANDUM OPINION

The employer has petitioned for review of the appeal tribunal decision that found the employee was discharged, but not for misconduct connected with his work. The employer asserts that the ALJ has made contradictory finding in stating that the employer's policy "provides that reporting for work under the influence of intoxicants, drinking alcoholic beverages, using drugs, or the possession of either while on Company time or premises could result in immediate discharge" and stating that "the employer's policies do not indicate the severity of discipline applied following a positive post accident test." The findings are not contradictory. The employer's policy does not state what will occur if an individual has a positive test, although it does state the consequences of appearing for work "under the influence." A positive test result is not synonymous with being "under the influence." In this case, the employer asserted that the employee tested positive for marijuana. However, a positive test result simply indicates that the employee ingested marijuana at some point, but does not establish that the employee was "under the influence" at work or that he ingested marijuana at work.

Further, as noted by the administrative law judge, the employer did not present certified evidence establishing that the employee tested positive for marijuana. The employer did not present any certified form from the lab, Advanced Toxicology Network, completed by an individual with firsthand knowledge of the test. Instead the employer submitted a form certified by a medical review officer at ChoicePoint Medical Review Services.

cc: Marriott (Middleton, Wisconsin)



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