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

MICHAEL PITTMAN, Employee

BEE BUS LINE INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 07607856MW


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 beginning in week 44 of 2007, if otherwise qualified.

Dated and mailed March 26, 2008
pittmmi . usd : 115 : 1  MC 652.4

James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

MEMORANDUM OPINION


The employee worked five years as a driver for the employer, a school bus company.

The employer's drug and alcohol policy (exhibit #3) provides for random testing of drivers.

The employee was subjected to a random drug test on October 23, 2007. A positive test for cocaine metabolites was reported to the employer on October 31, and the employee was discharged as a result effective November 1.

By correspondence dated and mailed on December 19, 2007 (exhibit no. 2), the department provided drug testing forms to the employer and explained their use in the hearing process. This correspondence stated a due date for submission of these forms of December 28, and, "[i]f you have any questions, call us at (414) 227-4731 between 7:45 a.m. and 4:30 p.m. weekdays."

The employer did not submit the completed drug test forms prior to or during the January 9, 2008, hearing, explaining that the weekend/holiday prevented it from meeting the December 28 deadline, and that the individual who obtained the specimen no longer worked for the testing firm.

However, the employer has the burden of proof, and, without the certified forms, expert testimony, or an admission by the employee, the burden to prove that the employee had used cocaine or had tested positive for cocaine use cannot be sustained. The employer, if it was experiencing difficulties getting the forms completed prior to hearing, could have contacted the department at the number stated in the December 19 letter to explain and obtain advice regarding these difficulties, but failed to do so.

In its petition, the employer takes issue with the ALJ's ruling that the employer was not permitted to ask the employee "whether he admitted to failing the test." However, the ALJ's ruling was correct. In order to competently answer this question, the employee would have to be conversant with the testing process, and qualified to interpret the test results. The employer does not assert, nor does the record show, that the employee had these qualifications. His testimony, for example, that he was told that he had failed the drug test, would be hearsay. If the employer had asked the employee whether he had used cocaine prior to October 23, the employee would have been competent to answer this question, but this question was not asked.



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uploaded 2008/03/31