CLARENCE D JEFFERSON, Employee

DUNHILL STAFFING SYSTEMS INC, Employer

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.

The decision of the administrative law judge is affirmed. Accordingly, the employee is eligible for benefits beginning in week 9 of 2009, if otherwise qualified.

Dated and mailed September 4, 2009
jeffecl . usd : 164 : 5   MC 652.4

/s/ James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

In the petition for commission review the employer's agent argues that, as the employer is an agency that provides staff to other companies, it was not able to procure the drug test documents to submit for this case and is still working on attempting to obtain those results from the lab where the tests were performed. The employer's agent argues that the employee admitted to using drugs and knew that he could be tested at any time for use of drugs. It contends that the discharge in this case was for wilful misconduct and that the employer strongly feels it should not be charged for benefits. These arguments fail. The employer had the burden of proof in this matter and was obligated to present the drug testing forms at the hearing. The employer's difficulty in doing so was related to its decision to discharge the employee based upon a drug test performed by its client without having seen the results of that test. While the employee admitted to using marijuana on January 1, 2009, the drug test was not performed until February 23, 2009. There is no evidence to suggest that the employee was under the influence of illegal drugs or that such drugs were in his system at the time he was discharged. Under all the circumstances, the commission agrees with the appeal tribunal that misconduct was not established. Accordingly, the appeal tribunal decision is affirmed.

cc: Dunhill Staffing Systems Inc. (Milwaukee, Wisconsin)

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uploaded 2009/10/23