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

TOMICCA Y DUFFY, Employe

STAFFING RESOURCES (SC) LTD PTRSHP, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 00603821RC

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, if otherwise qualified.

Dated and mailed August 24, 2000
duffyto.usd : 105 : 1  MC 652.4

/s/ David B. Falstad, Chairman

Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

The employer's representative asserts that the employer provided all information and documentation regarding the claimant's failure to pass a drug test. The employer's representative asserts that the designation on the drug test "equiv" means the test results were abnormal. That is all that means, however; it is guessing to take the next step and assert that an abnormal result is the same as a positive result. A result could be abnormal for a myriad of reasons, many of which would have nothing to do with the claimant. For these reasons, the commission fully agrees with the appeal tribunal that the employer did not meet its burden of proof.

There is an even more vital flaw in the employer's case. The evidence the employer submitted, established only that the laboratory conducted a toxicology screen on the employe's sample. There is no evidence to indicate that the results were ever confirmed by one of the so-called confirmatory tests such as gas chromatography/mass spectrometry, or high-performance liquid chromatography, for example. Such confirmatory tests are necessary because screening tests present such a large number of "false positives." Absent confirmation, a toxicology screen has no evidentiary weight. See "Scientific Issues in Drug Testing," Council on Scientific Affairs, JAMA, June 12, 1987 - Vol. 257, No. 22, pp. 3110-3114.

For these reasons and those stated in the appeal tribunal decision, the commission has affirmed that decision.

cc: JOAN CARROLL
HEARING DECISION ANALYST
C/O THE FRICK COMPANY

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