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

DUSHAWN R REID, Employee

RESEARCH PRODUCTS CORP, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 07001012MD


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 two and a half years as an assembler for a manufacturer. He was discharged February 15, 2007 (week 7).

The employee tested positive for marijuana on April 1, 2005, in violation of the employer's drug and alcohol policy. He signed a last chance agreement, which provided for random drug and alcohol testing as long as the employee remained employed with the employer. Under the agreement, a second positive test would result in immediate discharge. On January 29, 2007, the employee submitted to a random drug test. He was discharged for testing positive for marijuana.

The employee denies using illegal drugs. He argues that the drug test was inaccurate because the chain of custody was compromised when the individual taking the sample at the clinic tore the sample's label in two. The department's certified drug form which establishes the chain of custody was not completed by the individual involved because she had left her employment. Her supervisor completed the form.

The issue to be decided is whether the employer has proved that the employee's discharge was for misconduct connected with his employment.

The commission has previously held that certification of the department's chain of custody form must be done by a person with first hand knowledge, in order to satisfy the employer's burden of proof. In a similar case, an employee denied that he used illegal drugs and questioned the identity of the urine sample which tested positive. Since a supervisor certified the form, no one with first hand knowledge could account for discrepancies in the original collection document, on which the certification was presumably based, and explain inconsistencies in the timeline. Wimpie v. Milwaukee Transport Services Inc, UI Dec. Hearing No. 05603202MW (LIRC Sept. 20, 2005).

Establishing a clear chain of custody during collection is necessary in order to guarantee that it was the employee's sample which showed the positive result. The commission distinguishes the reliability of a supervisor's certification in a lab setting from that in a clinic setting, and insists that a first hand eyewitness must sign to establish the identity of the sample. Anderson v. R & L Transfer Inc, UI Hearing No. 02603529MW (LIRC May 7, 2003).

Since the employer's forms are not properly certified, they do not establish that the employee tested positive for illegal drugs. Without a properly certified departmental drug 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 commission therefore finds that in week 7 of 2007, the employee was discharged but that the 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 7 of 2007, if otherwise qualified.

Dated and mailed August 31, 2007
reiddus . urr : 178 : 1   MC 652.4  PC 714.07

/s/ James T. Flynn, Chairman

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

MEMORANDUM OPINION

The commission did not reverse due to any differing assessment of witness credibility but as a matter of law.

cc: Attorney Jack D. Walker


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uploaded 2007/09/10