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


BRIDGETTE P COLLINS , Employe

WESTAFF (USA) INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 99604783MW


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 employe is eligible for benefits beginning in week 21 of 1999, if otherwise qualified.

Dated and mailed November 18, 1999
collibr.usd : 105 : 6  MC 651.2  MC 652.4

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

James A. Rutkowski, Commissioner


MEMORANDUM OPINION

The employer's representative asserts in its petition that the employer did provide evidence of misconduct and that the claimant could not provide evidence to refute the employer's allegations. The employer's evidence was not competent to establish its allegations, however. Even though the employer received the standard drug test report forms, the employer did not introduce Part II of that form into evidence at the hearing. That form is a certified report establishing whether the subject individual tested positive for the controlled substance at issue. The employer's report purporting to establish the positive test for cocaine metabolites was not certified. As such, it is not competent evidence to establish that the employe tested positive for cocaine.

The employer also failed to establish the restrictiveness of its drug policy. The employer's branch manager testified that the employer is a drug-free work place. This could mean that the employer does not allow unauthorized controlled substances at work sites; it could mean that employes may not report to work or be at work while under the influence of unauthorized controlled substances; it could mean that employes are subject to discharge for any use, on or off-duty, of unauthorized controlled substances. The separation was a discharge and, as such, it was the employer's evidentiary burden to establish that the discharge was for misconduct for unemployment insurance purposes. The employer's evidence is insufficient to meet that burden; for these reasons, and those stated in the appeal tribunal decision, the commission has affirmed that decision.

cc: WESTAFF (USA) INC
C/O EMPLOYMENT TAX CONSULTING


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