Nelson v Robot Support, Inc. – 12.160

Nelson v Robot Support, Inc.
Digest No. 12.160

Section 421.29(1)(b)

Cite as: Nelson v Robot Support, Inc, unpublished opinion of the Macomb County Circuit Court, issued October 3, 2017 (Docket No. 17-0123-AE).

Court: Circuit Court
Appeal pending:No
Claimant: Lisa Nelson
Employer: Robot Support, Inc.
Date of decision: October 3, 2017

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HOLDING: Excessive absences beyond a claimant’s control do not constitute the basis for misconduct. A claimant’s use of text messaging, instead of telephone, to communicate with his or her employer regarding the absences also does not constitute misconduct.

FACTS: Claimant was employed by Robot Support as an administrative assistant. Claimant left work in April 2016 to care for her mother, who was ill. During that time, Claimant also became ill and ended up missing 19 consecutive days of work. During that absence, Claimant sent her employer text messages to keep it updated. When Claimant returned to work, she was fired.

DECISION: It is well established that excessive absences beyond a claimant’s control do not constitute the basis for misconduct. Washington v Amway Grand Plaza, 135 Mich App 652, 658 (1984). It was contrary for law for the ALJ in this case to state that Claimant’s excessive absences were disqualifying misconduct, when really it based his decision on the fact that Claimant communicated her need for absences via text message instead of telephone.

RATIONALE: The ALJ’s findings of fact–that Claimant never communicated with her employer regarding the severity of her situation or the need for leave and sent updates to her employer via text–are supported by material and competent evidence. Claimant submitted medical documentation proving that her absences were beyond her control because both she and her mother were ill.

However, the ALJ based its decision on the lack of communication about the absences, not the absences themselves. The ALJ reasoned that it was disqualifying misconduct for Claimant to not call her employer during her extended absence. The Circuit Court held that the ALJ erroneously applied the law to the facts because, according to its decision, Claimant wasn’t terminated for her alleged misconduct, but rather her failure to communicate by telephone. The employer did not have a written policy requiring employee communications by telephone, and Claimant had in the past communicated with her employer via text. The Circuit Court held the decision of the ALJ contrary to law and reversed the decision of the MCAC, which affirmed the ALJ’s decision disqualifying Claimant from receiving benefits.

Digest author: Sarah Harper, Michigan Law, Class of 2017
Digest updated: December 26, 2017

Mendoza v. Aerotek, Inc. – 12.159

Mendoza v. Aerotek, Inc.
Digest No. 12.159

Section 421.29(1)(m)

Cite as: Mendoza v Aerotek, Inc, unpublished opinion of the Michigan Compensation Appellate Commission, issued August 18, 2017 (Docket No. 17-004211-252718W).

Court: Michigan Compensation Appellate Commission
Appeal pending: No
Claimant: Pedro Mendoza
Employer: Aerotek Incorporated
Date of decision: August 18, 2017

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HOLDING: The Michigan Compensation Appellate Commission (MCAC) reversed an Administrative Law Judge (ALJ) order finding Claimant disqualified for benefits under the “testing positive for drug use” provision of Section 29(1)(m).  The Commission held that under Ashford v Unemployment Compensation Commission, 328 Mich 428, 433 (1950), the employer did not meet its burden of proof where it failed to appear, and thus no prima facie case was established to prove the misconduct.  Therefore, the Commission reversed the order and found Claimant eligible for benefits.

FACTS:  The Agency found Claimant disqualified for benefits under the misconduct provision of MES 421.29.  Here, Claimant tested positive for drug use on an employer-administered drug test and thus was found ineligible under the illicit drug use provision of Section 29(1)(m).  At the hearing, the only participants present were Claimant’s attorneys and the judge.  Despite the employer’s lack of appearance, the judge affirmed the Agency’s finding of disqualification and held Claimant ineligible for benefits.  The MCAC reversed on appeal.

DECISION: The Commission reversed the ALJ order and found Claimant not disqualified for benefits under Section 29(1)(m).

RATIONALE: The Commission found that because the employer had the burden of proof to establish misconduct, its failure to appear at Claimant’s hearing and present evidence to support a finding of misconduct failed to meet the burden of proof.  Because no prima facie showing of misconduct could be established without the employer’s presence, the Commission held that the ALJ erred in affirming the Agency’s finding of misconduct.  Further, Claimant had no burden of proof in this case, and had only the obligation to prosecute his appeal under Ashford.  Because the employer failed to meet its burden of proof by not appearing at the hearing, and because Claimant had no burden of proof under Section 29(1)(m), the order was reversed and the Commission found Claimant not disqualified for benefits.

Digest author: Laura Page, Michigan Law, Class of 2018
Digest updated: January 2, 2018


Nichols v. Auto Club Services – 12.158

Nichols v. Auto Club Services & UIA
Digest No. 12.158

Section 421.29(1)(b)

Cite as: Nichols v Auto Club Services, Inc, Unpublished Opinion of the Michigan Court of Appeals, Issued November 19, 2015 (Docket No. 14-001823-AE).

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Appeal Pending: No
Claimant: Aisha Nichols
Employer: Auto Club Services Inc.
Date of Decision: November 19, 2015

HOLDING: Absences for good cause in violation of an employer’s no-fault attendance policy do not constitute misconduct under MCL 421.29(1)(b).

FACTS: In October 2012, claimant was hired as a customer sales and service representative for Auto Club Services Incorporated (“ACS”). After working for 90 days, ACS employees earned three days off from work for every six months. ACS had a written no-fault attendance policy with no written exceptions, and exceptions were very rare in practice. Between December 3, 2012, and February 5, 2013, claimant received three written discipline notices, two of which were related to absences or tardiness.

On February 28, 2013, while driving to work, claimant’s vision blurred, and she was unable to see. Claimant had previously experienced blurred vision and believed it was caused by “having a thyroid storm.” She left a voicemail with ACS informing them the (1) the reason for her absence was personal and (2) she could explain her absence upon her return on March 1, 2013.

Upon returning on March 1, 2013, ACS discharged claimant for her absence pursuant to their no-fault attendance policy. While being discharged, claimant informed ACS she felt unwell and could not see on February 28th. She did not provide medical documentation explaining her absence on the aforementioned date but had previously warned her employer she was not feeling well.

Claimant was disqualified from unemployment benefits pursuant to MCL 421.29(1)(b). During claimant’s hearing before an Administrative Law Judge (“ALJ”), the parties stipulated her absence was due to an illness, but there is a dispute whether the ALJ accepted that stipulation. The ALJ and subsequently, the Michigan Compensation Appellate Compensation (“MCAC”) and Wayne Circuit Court affirmed claimant’s determination of disqualified from benefits under MCL 421.29(1)(b). Claimant appeals arguing the lower tribunals’ (1) decisions were contrary to law and (2) fact finding was unsupported by competent, material, and substantial evidence.

DECISION: Claimant is not disqualified for misconduct pursuant to MCL 421.29(1)(b) because the absences were beyond her control, and thus, she had good cause for said absence.

RATIONALE: Misconduct has been defined as “conduct evincing such willful or wanton disregard of an employer’s interest as is found in deliberate violations or disregard of standards of behavior which the employer has the right to expect of his employee.” Carter v. Mich. Employment Security Comm., 364 Mich. 538, 541; 111 NW2d 817 (1961). However, infractions that may cause termination do not necessarily constitute misconduct under MCL 421.29(1)(b). Hagenbuch v. Plainwell Paper Co., Inc., 153 Mich. App. 834, 837-838; 396 NW2d 556 (1986). Absenteeism and tardiness for reasons not beyond a claimant’s control constitute misconduct. Id at 837. However, absenteeism and tardiness for reasons beyond a claimant’s control which are otherwise with good cause do not constitute misconduct. Washington v. Amway Grand Plaza, 135 Mich. App. 652, 658; 354 NW2d 299 (1984).

The court argued the basis of claimant’s discharge was her accumulation of absences in violation of ACS’ attendance policy, not claimant’s failure to notify ACS of her medical condition to explain her final absence. This was confirmed by an ACS senior employee who testified that claimant would have been discharged due to the absences, regardless of whether she provided an explanation. Claimant provided evidence that her absences and tardiness prior to the February 28th incident were due to one or more chronic medical conditions related to her thyroid. Thus, these absences were beyond her control and constituted good cause.

The lower tribunals’ factual findings and ACS’s offered evidence was not inconsistent with claimant’s showing of good cause for her absences. Furthermore, the lower tribunals did not determine that claimant’s absences were without good cause and thus, erred in disqualifying claimant under MCL 421.29(1)(b). The Court held claimant was wrongfully disqualified for misconduct and remanded for further proceedings.

Digest Author: Sean Higgins, Michigan Law, Class of 2017
Digest Updated: 3/27/2016

Hodge v. US Security Associates, Inc. – 16.91

Hodge v. US Security Associates, Inc.
Digest No. 16.91

Section 421.29; Section 421.38

Cite as: Hodge v US Security Associates, Inc., unpublished opinion of the Mich. Sup. Ct., issued February 6, 2015 (Docket No. 149984).

Appeal pending: No
Claimant: Carnice Hodge
Employer: U.S. Security Associates, Inc.
Date of decision: February 6, 2015

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HOLDING: A reviewing court is not at liberty to substitute its own judgment for a decision of MCAC that is supported with substantial evidence.

FACTS: Claimant was a security guard at an airport. Claimant was fired for accessing publicly available flight departure information on a computer at the request of a traveler in violation of the employer’s policy regarding the unauthorized use of computer equipment. The Administrative Law Judge (ALJ) disqualified claimant from unemployment benefits for committing misconduct under Section 421.29. The Michigan Compensation Appellate Commission (MCAC) affirmed, holding that the decision was made in conformity with the facts as developed at the hearing and properly applied the law to the facts. The Wayne Circuit Court reversed, concluding that claimant’s conduct did not warrant a denial of benefits because claimant was violating the employer’s policy in order to help a customer, and the Michigan Court of Appeals affirmed the Wayne Circuit Court’s reversal.

DECISION: The Court of Appeals judgment is reversed and the MCAC judgment is reinstated.

RATIONALE: The Wayne Circuit Court and the Court of Appeals applied an incorrect standard of review by substituting their own assessment of the relative severity of claimant’s violation of her employer’s rules for the assessment of MCAC. A reviewing court is not at liberty to substitute its own judgment for a decision of MCAC that is supported with substantial evidence. A circuit court must affirm a decision of the ALJ and MCAC if it conforms to law and if competent, material, and substantial evidence supports it. The ALJ was the only adjudicator who actually heard testimony and observed the demeanor of the witnesses while testifying, reviewed all the evidence in the record, and made findings of fact based on credibility of witnesses and weight of the evidence. MCAC’s assessment of claimant’s conduct was made within the correct legal framework and was therefore authorized by law and not contrary to law, so the courts below improperly reweighed the evidence in order to reach a different assessment in violation of Section 421.38 and Const. 1963, art 6, § 28.

Digest author: Winnie Chen, Michigan Law, Class of 2017

Digest updated: 11/19/2017

War Memorial Hosp. v. Nodurft

War Memorial Hospital. v. Nodurft
Digest no.

Section 29(1)(a)

Cite as: War Mem’l Hosp v Nodurft, Unpublished Opinion of the Michigan Court of Appeals, issued June 3, 2014 (Docket No. 312205)

Appeal Pending: No
Court: Court of Appeals of Michigan
Date of decision: June 3, 2014

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Holding: A nurses aide, discharged for refusing to help restrain an out of control patient and thus putting her co-workers and the patient in danger, commits disqualifying misconduct under MCL 421.29(1)(b).

Facts: Employer Behavioral Health Center terminated claimant Nodurft when claimant refused to assist, at the direction of nurse manager Greg Wolf, other staff members in the restraint of an agitated and violent patient. Defendant filed a claim for unemployment benefits, which the Unemployment Insurance Agency denied under the misconduct provisions of the Michigan Employment Security Act (MESA) MCL 421.29. An Administrative Law Judge (ALJ) upheld the Agency’s decision, which the MCAC affirmed. Defendant then filed a claim of appeal with the circuit court, which reversed the MCAC’s decision upholding the denial of unemployment benefits.

Decision: The Court of Appeals reversed the circuit court’s order overturning the decision of the Michigan Compensation Appellate Commission, which upheld the denial of unemployment benefits to defendant Nodurft on the basis that she was “discharged for misconduct connected with her work,” under MCL 421.29(1)(b).

Rationale: The circuit court reversed the decision on the basis of its view that the evidence did not support plaintiff’s decision to terminate defendant’s employment on the basis of insubordination. Whether a termination is proper, however, is irrelevant when considering whether work-related misconduct occurred under MCL 421.29(1)(b). Nowhere in the Supreme Court’s definition of “misconduct” [in Carter v. Michigan Employment Security Comm.]  is the propriety of the employer’s authority to terminate an employee taken into consideration. Rather, the focus of the misconduct analysis must be on the claimant’s misconduct, not whether the employer wrongfully discharged the claimant. The CoA also found that the Circuit Court did not follow the correct standard of review.

When the definition of “misconduct” articulated by Carter is applied, it is clear that competent, material, and substantial evidence on the whole record supports the conclusion that disqualifying misconduct occurred.

Digest author: James C. Robinson
Digest updated: 2/15

Latham v. Comcast Cablevision Corp. – 12.157

Latham v. Comcast Cablevision Corp.
Digest No. 12.157

Section 421.29(1)(b)

Cite as: Latham v Comcast Cablevision Corp, unpublished opinion of the Wayne County Circuit Court, issued August 28, 2013 (Docket No. 13-003859-AE).

Appeal pending: No
Claimant: Carmen Latham
Employer: Comcast Cablevision Corporation
Date of decision: August 28, 2013

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HOLDING: The Michigan Appellate Compensation Commission’s decision that Latham’s discharge for misconduct was contrary to law. Absent the provision of Comcast’s written policy on credit checks, there was not enough evidence to show that Latham’s actions rose to the level of misconduct.

FACTS: From April 3, 2006 until May 11, 2012, when she was discharged for misconduct, Latham worked for Comcast as an inbound sales executive. In March 2012, Comcast audited Latham’s work because she had not run credit checks on several accounts. On May 11, 2012 Latham was discharged. She then filed a claim for unemployment, but was ruled disqualified under the misconduct provisions of the act. According to the testimony of the employer at the ALJ hearing, credit checks are mandatory and the company’s policy does not allow employees discretion on whether to perform them. Latham was also found to have set up an account without Comcast’s permission, but believed she was following an appropriate course of action.

DECISION: The circuit court reversed the decision of the Michigan Appellate Compensation Commission and ruled that the claimant was not disqualified for benefits because of misconduct under Section 29(1)(b) of the act.

RATIONALE: Latham argued that under MRE 1002, the best evidence rule, Comcast was required to provide the written policy on credit checks rather than using testimonies of employees to demonstrate its contents. The circuit court agreed and stated that without this policy, it only had the statements of Comcast representatives to rely on to decide how much discretion Comcast employees are allowed. Without the written policy clearly defining Latham’s responsibilities, the circuit court found that her conduct amounted only to poor performance and not misconduct.

Digest Author: Alisa Hand, Michigan Law, Class of 2017
Digest Updated: 3/27/2016

Carter v. MLP MFG, Inc. – 16.75

Carter v. MLP MFG, Inc.
Digest No. 16.75

Section 421.38, Section 421.29

Cite as: Carter v MLP MFG, IncMuskegon Circuit Court, No. 02-41720-AE (February 18, 2003).
Appeal pending: No
Claimant: David Carter
Employer: MLP MFG, Inc.
Date of decision: February 18, 2003

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HOLDING: When both an agent and an attorney have filed an appearance, an order must be served to both of them to fulfill Section 421.1101 (now rescinded).

FACTS: The administrative law judge issued an opinion dated July 20, 2001, which affirmed an agency determination denying the claimant unemployment benefits because of misconduct. The claimant’s agent appealed this opinion. The Board of Review affirmed the decision with an opinion dated November 9, 2001. On December 10, 2001, the claimant’s counsel filed his appearance and a timely request for a rehearing of the November 9, 2001 decision. The Board issued an order denying the application for rehearing on January 24, 2002. This January 24, 2002 order was not sent to the claimant’s attorney. Consequently, on April 29, 2002, the claimant’s attorney moved the Board to reopen the matter so that the claimant could file a timely appeal with the circuit court. In an order dated June 28, 2002, the Board denied the application for reopening, but acknowledged sending a copy of the January 24, 2002 order to the claimant and the claimant’s agent, but not the claimant’s attorney. On July 2, 2002, the claimant filed this appeal to the circuit court.

DECISION: The Board of Review erred in failing to send the claimant’s counsel a copy of the January 24, 2002 order.  When both an agent and an attorney have filed an appearance, an order must be served to both of them to fulfill Section 421.1101 (now rescinded), which is to be read in a manner that does not produce an unjust result, even if the literal language of the rule suggests otherwise. Therefore the July 2, 2002 filing of this appeal was timely, and this Court will adjudicate the appeal on the merits. This Court finds that the ALJ’s decision was not contrary to law and therefore affirms the previous decision disqualifying the claimant for benefits.

RATIONALE: In construing administrative rules, courts apply principles of statutory construction. However, there is an exception “when a literal reading of the statutory language would produce an absurd and obviously unjust result and would be clearly inconsistent with the purposes and policies of the act in question.” AG v LS Wood Preserving, Inc, 199 Mich App 149, 155 (1993). Reading Section 421.1101(1) literally (“A decision, notice, or order shall be served on each party and on the agent or attorney of record of each party . . .” (emphasis added)) would provide an unjust result in this case, as the purpose and policy of the rule is to provide notice. Thus the Board of Review needed to send the January 24, 2002 order to both the claimant’s agent and the claimant’s counsel, even though the rule uses the word “or.” Hence, the 30-day appeal period of Section 421.38(1) was tolled until the Board of Review issued its final order on June 28, 2002, and the July 2, 2002 filing of appeal was timely. Nevertheless, this Court finds that the ALJ’s decision was not contrary to law and was supported by competent, material, and substantial evidence on the whole record. The ALJ found the testimony of the cliamant’s supervisor to be credible. In doing so, he found that the claimant had engaged in three “no-call, no-show” absences which constitutes misconduct within the meaning of Section 421.29.

Digest author: Winne Chen, Michigan Law, Class of 2017
Digest updated: 11/19/2017

Sheppard v Meijer Great Lakes Limited – 10.119

Sheppard v Meijer Great Lakes Limited
Digest no. 10.119

Section 29(1)(a)

Cite as: Sheppard v Meijer Great Lakes Limited, Unpublished Opinion of the Michigan Court of Appeals, Issued Dec. 20, 2012 (Docket No. 300681).

Appeal pending: No
Claimant: Linda M. Sheppard
Employer: Meijer Great Lakes Limited
Docket no.: 10-000383-AE
Date of decision: December 20, 2012

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HOLDING: Claimant did not leave voluntarily for the purposes of Section 29(1)(a) when she attempted to take a leave of absence, failed to follow the correct procedures, and was subsequently discharged by the Employer.

FACTS: Claimant worked for Employer and attempted to take a two-month leave of absence. She notified her supervisor that she would be doing so, and her supervisor testified that he informed her that she would need written approval from the store director before she could take such a leave. There was a miscommunication regarding the approval, with both parties believing the other had obtained the necessary authorization. Claimant left without authorization and was subsequently terminated from her employment.

Claimant applied for and began receiving unemployment benefits. Employer protested her claim, arguing that Claimant had voluntarily resigned. The UIA issued a redetermination stating that Claimant was not qualified for benefits due to misconduct. On appeal, the ALJ affirmed the decision, stating that because Sheppard did not receive approval to take the leave of absence before she left work, she was not qualified because of misconduct. Claimant appealed to the Board of Review, which affirmed the ALJ on the grounds that she abandoned her employment, and was disqualified based on Section 29(1)(a), the voluntary leaving provision, not the misconduct provision. Sheppard appealed to the Circuit Court, which did not determine whether Sheppard abandoned her employment, but affirmed the Board of Review decision. Finally, Sheppard applied for leave to appeal, which was denied by the Court of Appeals but subsequently granted by the Michigan Supreme Court.

DECISION: The Circuit Court erred when it affirmed the Board of Review’s determination that Claimant voluntarily quit. The Circuit Court’s decision is vacated and Claimant is not disqualified from benefits.

RATIONALE: In determining whether a claimant is disqualified from benefits under 29(1)(a), the Court must first determine whether she voluntarily left her job, or was discharged. If it is found the claimant did not voluntarily quit, “the inquiry ends” and the claimant “is entitled to unemployment compensation.”

The Court of Appeals has previously held that “when an employee requests a leave of absence, and the employer actually terminates the employee’s employment, that employee has not voluntarily quit.” A voluntary quit must be an intentional act, but here, the act to end employment was conducted by the employer. Since there was no evidence that Claimant voluntarily quit or did not report for work on a day that Meijer expected her to work, the Circuit Court erred as a matter of law in upholding the Board of Review determination that Claimant voluntarily quit.

Digest author: Nick Phillips
Digest updated: 8/14

Kowalski v. Henry Ford Macomb Hospital – 12.143

Kowalski v. Henry Ford Macomb Hospital
Digest No. 12.143

Section 421.29(1)(b)

Cite as: Kowalski v Henry Ford Macomb Hospital, unpublished opinion of the Macomb Circuit Court, issued January 27, 2012 (Docket No. 2011-2690-AE).

Appeal pending: No
Claimant: Robert P. Kowalski
Employer: Henry Ford Macomb Hospital
Docket no.: 2011-2690-AE
Date of decision: January 27, 2012

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HOLDING: It is not a willful and wanton disregard of an employer’s interests to repeatedly access confidential patient information without explicit authorization when (1) the employer had a vague and discretionary policy regarding access to the confidential information, and (2) the employee, in the course of accessing information related to his job duties, is unable to avoid viewing confidential information unrelated to his assigned tasks.

FACTS: Claimant (appellant) worked as a regulatory documentation clerk at the Henry Ford Macomb Hospital.  As a documentation clerk, claimant used a computer system (the MIDAS system) to enter patient Medicaid information.  Although claimant had unrestricted access to the MIDAS computer suite and all its associated confidential patient information, the employer claimed that claimant was only authorized to view information on two particular MIDAS screens.  The employer maintained that claimant was only to access information that he had a “need to know.”  Claimant testified to his belief that he was authorized to view information in any part of the MIDAS system in order to complete job-related tasks.  After claimant submitted a report to his supervisor that contained patient information outside the scope of claimant’s supposed purview, a computer audit was initiated to investigate claimant’s MIDAS access history.  The audit revealed that claimant had accessed MIDAS screens with information that the employer considered unrelated to his job duties.  Claimant testified at a hearing before an ALJ that he had accessed the information on these screens in order to perform job-related tasks.  Although the ALJ found that “the employer failed to establish that [claimant] willfully, wantonly, and intentionally . . . disregard[ed] . . . standards of behavior which the employer had the right to expect,” the Board of Review reversed the decision.  The Board based their decision on a finding that claimant deliberately accessed a file without authorization.  At the Board hearing, claimant presented evidence that the MIDAS system required him to go through the allegedly unauthorized screens in order to access the authorized screens.

DECISION: Decision of the Board of Review was not supported by competent, material, and substantial evidence on the whole record.  Decision of the Board of Review reversed and decision of the ALJ affirmed.

RATIONALE: Because (1) there were valid reasons for claimant to access the entire MIDAS system, rather than the limited use supposed by the employer’s “need to know” policy, and (2) access to the authorized screens required going through the unauthorized screens first, the claimant’s actions were a “good faith error in judgement.”

Digest Author: James Mestichelli, Michigan Law, Class of 2017
Digest Updated: 3/1/2016

Bixler v. Concentra Health Services, UIA – 12.142

Bixler v. Concentra Health Services, UIA
Digest No. 12.142

Sections 421.29(1)(m) and 421.29(1)(b)

Cite as: Bixler v Concentra Health Services, Inc, unpublished opinion of the Wayne Circuit Court, issued January 24, 2012 (Docket No. 11-009212-AE).

Appeal pending: No
Claimant: Barbara Bixler
Employer: Concentra Health Services, Inc.
Docket no.: 11-009212-AE
Date of decision: January 24, 2012

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HOLDING: The burden of proof on the employer to prove the the Claimant ineligible under 29(1) prevents the ALJ from “questioning the [Claimant] into proving the case against her, effectively forcing her to carry the burden of proof against herself.” Although the ALJ has “a duty to decide benefits regardless of the action or inaction of the employer”, and may independently question witnesses, such questioning must not be “used as a tool to circumvent the requirement that the employer carry the burden of proof”.

FACTS: Claimant smoked a small amount of marijuana for the first time in 35 years. One and a half days later, she was pulled for a random drug screening at her job as a receptionist for Concentra. She failed the drug test and was subsequently terminated. Concentra fired her over the phone and she stated at trial that the reason given was the positive drug test. She then received 25 of 26 available unemployment insurance payments before the UIA sued to declare her ineligible and for restitution totaling $7,025. Concentra failed to appear at the hearing. At the ALJ level, the employer’s side offered no evidence of the positive drug test. During questioning, however, after objections, Claimant answered that she remembered seeing the positive test, and that she assumed, logically, that it was caused by her drug use two days prior. Relying on this evidence, the ALJ found her ineligible, but ruled that UIA was not entitled to restitution because it had been notified of her potential ineligibility five months before it ceased to pay her benefits. On appeal, the Board of Review upheld Claimant’s ineligibility but reversed on the restitution because the agency’s continuance of payments was due to their high volume at that time and not due to an administrative error. Claimant appealed to the Circuit Court of Wayne County.

DECISION: The Board of Review decision is reversed and Claimant is entitled to unemployment insurance benefits.

RATIONALE: The burden of proof on the employer to demonstrate a 29(1) defense cannot be circumvented by the special rule allowing ALJs to question witnesses and to make eligibility determinations in the absence of employer intervention. Thus the burden of proof rule trumps the special ALJ questioning rule. The alternative outcome would have been that the rule allowing ALJs to independently question Claimants overrides the burden of proof rule. Under this hierarchy of rules, however, “the employer would never have to appear in a drug test case”. The temptation to make the witness admit to her drug use may be motivated by a legitimate concern for the public interest, since the people have decided, via the legislature that those fired for drug use are ineligible for benefits. However, the same public also decided that the burden of demonstrating 29(1) defenses falls on the employer.

The court also noted that the burden shifting is especially “troublesome when it comes to ascertaining whether the test was administered in discriminatory manner”. Since the employer made no appearance, and thus gave no account as to how the test was administered, the Claimant had no means to challenge the test as discriminatory. Note that the test being non-discriminatory is a condition of the employer’s 29(1)(m) defense, not a counter attack available to claimants. Thus a drug tests non-discriminatory status is subject to the employer’s burden of proof. The ALJ may have assumed that, because we know that the Claimant in this case had, in fact, used drugs, the test couldn’t have been discriminatory, because it was accurate. Since part of the administration of drug tests is the selection of employees to take the test, accuracy of the result is not sufficient to show that the test was not administered discriminatorily. Again, without the employer offering some account of the test’s administration, the Claimant had no real opportunity to challenge it on those grounds. As the court stated “She could not cross examine an empty chair.”

Digest Author: James Fahringer, Michigan Law, Class of 2018
Digest Updated: 3/1/2016