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Cite as: Mendoza v Aerotek, Inc, unpublished opinion of the Michigan Compensation Appellate Commission, issued August 18, 2017 (Docket No. 17-004211-252718W).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


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

Ciaravino v. Ford Motor Co. – 14.16

Ciaravino v. Ford Motor Co.
Digest No. 14.16

Section 421.29(1)(m)

Cite as: Ciaravino v Ford Motor Co, unpublished opinion of the Macomb County Circuit Court, issued December 19, 2007 (Docket No. 2007-2858-AE).

Appeal pending: No
Claimant: Robert Ciaravino
Employer: Ford Motor Company
Docket no.: 189730H
Date of decision: December 19, 2007

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Holding: The Board’s decision that Ciaravino should be disqualified from receiving unemployment benefits was not contrary to law and was supported by substantial evidence. Ford’s evidence was sufficient to show that Ciaravino’s positive drug test for marijuana, a controlled substance, disqualified him from receiving benefits.

Facts: Robert Ciaravino worked as an employee for Ford Motor Company from October 1994 until October 7, 2005. After he tested positive for marijuana during a random urinalysis, he was discharged. Ciaravino’s specimen was taken by Beverley Tukis, a Ford full-time nurse, and the positive drug results were received by Sally Gruca, another Ford full-time nurse.

Decision: The circuit court affirmed the Board of Review’s decision, which found the claimant to be disqualified from receiving benefits for misconduct under Section 29(1)(m) of the MES Act.

Rationale: Though Ciaravino denied using marijuana and said he had been taking Vicodin for a knee injury, there was no evidence that Vicodin would produce a false positive for marijuana or that the test was erroneous. Ciaravino had also signed a Reinstatement Waiver on April 4, 2005 in which he agreed to submit to random drug and alcohol testing as a condition of employment at Ford. The discharge of an individual due to ingestion of marijuana, which is considered a “controlled substance” pursuant to MCL 333.7104, 7201 and 7212, disqualifies the individual from receiving benefits. Ford also provided sufficient evidence to establish an adequate chain of custody from which a positive specimen result could be inferred.

Digest Author: Alisa Hand, Michigan Law, Class of 2017
Digest Updated: 3/1/2016

Fowler v Marubeni Metal Blanking – 14.17

Fowler v Marubeni Metal Blanking
Digest No. 14.17

Section 421.29(1)(m)

Cite as: Fowler v Marubeni Metal Blanking, unpublished opinion of the Shiawassee County Circuit Court, issued December 15, 2006 (Docket No. 06-4352-AE).

Appeal pending: No
Claimant: David L. Fowler
Employer: Marubeni Metal Blanking
Date of decision: December 15, 2006

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HOLDING: A claimant cannot be disqualified from receiving benefits for a discharge resulting from the claimant’s refusal to submit to a drug test where the drug test was not administered in an impartial and objective manner.

FACTS: The employer decided to drug test the entire workforce due to a number of unusual occurrences, and because the employer was informed employees were using prescription drugs prescribed to other persons. The employees, including Claimant, were told that if they had a valid prescription and tested positive for that drug they would be okay.

When informed of the employer’s intent to test all employees, Claimant asked to speak with the plant manager. Claimant disclosed that he had taken Vicodin over the weekend from an earlier prescription and didn’t know if the prescription was “valid”. He asked to use his phone because he wanted to call his doctor and see if the prescription was “valid”. His request was denied because the employer was concerned that he might give the later shifts advance notice of the drug testing. No one from the employer was able to clarify what constituted a “valid” prescription. Claimant refused to take the test and was fired.

An ALJ found that Claimant was not disqualified for benefits under Section 29(1)(m)(ii) of the Act. The Board of Review reversed.   

DECISION: The Board of Review’s decision is reversed. Claimant is not disqualified from receiving unemployment insurance benefits under Section 29(1)(m)(ii) of the Act.

RATIONALE: For a claimant to be disqualified under Section 29(1)(m)(ii), he must refuse “to submit to a drug test that was required to be administered in a nondiscriminatory manner”. A claimant’s refusal to submit to a drug test cannot be adjudicated without first determining whether the test was administered in a nondiscriminatory manner. Under Section 29(1)(m)(ii)(C), for a drug test to be administered in a “nondiscriminatory manner”, it must be “administered impartially and objectively.”

Here, Claimant is not disqualified for benefits under Section 29(1)(m)(ii) because the drug test was not administered in a non-discriminatory manner because it was administered subjectively and based on improper information. Claimant made an appropriate request for clarification, and when the employer chose to give unclear and incorrect information, the risk of confusing a worker causing that worker to make a wrong decision was foreseeable. Further, the employer’s explanation to Claimant did not include the fact that Claimant would have the right to dispute the result of the testing.

Digest author: Stephanie Marshak, Michigan Law, Class of 2016
Digest updated: October 29, 2017

Henderson v. Peterman Mobile Concrete, Inc. – 14.18

Henderson v. Peterman Mobile Concrete, Inc.
Digest No. 14.18

Section 421.29(1)(m)

Cite as: Henderson v Peterman Mobile Concrete, Inc, unpublished opinion of the Kalamazoo Circuit Court, issued November 3, 2004 (Docket No. 04-00157-AE).

Court: Circuit Court of Kalamazoo
Appeal pending: No
Claimant: Mickey Henderson
Employer: Peterman Mobile Concrete, Inc.
Date of decision: November 3, 2004

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HOLDING: The Circuit Court upheld a Board of Review decision finding the claimant disqualified for unemployment benefits under 29(1)(m) after testing positive for marijuana on a drug test administered by his employer.

FACTS: Claimant was fired by his employer after testing positive for marijuana on a random drug test.  An Administrative Law Judge found Claimant not disqualified under the misconduct provision of MES 29(1)(b).  The Board of Review then reversed this decision, finding Claimant disqualified under the drug use provision of MES 29(1)(m).  Claimant appealed this decision to the Circuit Court, arguing that 1)  there was insufficient evidence that there was a properly administered test, confirmation, or retest as required by the Act; 2) the employer’s exhibits were admitted without proper foundation and contained hearsay; and 3) the employer violated 29(1)(m) by not providing and paying for a retest.

DECISION:  The Court held that there was sufficient evidence to establish a properly administered drug test, the test results were properly admitted into evidence, and the employer had no obligation to pay for a retest.  On these facts, the Court affirmed the Board of Review hearing and found the claimant disqualified for benefits under 29(1)(m).

RATIONALE: On Claimant’s first argument, the Court found that sufficient evidence existed to support the Board of Review’s finding that the drug test was administered properly and in accordance with federal guidelines for workplace drug testing. On the question of whether a confirmatory test was administered, the Court cited federal guidelines defining a confirmatory test as a “second analytical procedure performed on a urine specimen to identify and quantify the presence of a specific drug or drug metabolite.” 49 CFR 40.3.  Here, testimony from employees of the company hired to administer the test and the lab at which the sample was analyzed supported the employer’s contention that both the test and confirmatory test of the sample were administered in accordance with federal guidelines.

On Claimant’s second argument, the Court found that evidence of the drug testing was properly admitted into evidence.  The Court held that “while some of the testimony supporting the administration of the test was hearsay, it was admissible under Michigan law.  Evidentiary rulings in an administrative proceeding are not the same as those in courts of law; for example, hearsay evidence may be considered if it is commonly relied on by reasonably prudent persons in the conduct of their affairs. Rentz v Gen Motors Com, 70 Mich App 249, 253 (1976).”  The Court found that drug test results are commonly relied on by reasonably prudent employers in the conduct of their affairs, and thus the Board of Review’s decision to admit the supporting documentation into evidence was not in error.

On Claimant’s final argument, the Court found that  “absolutely no law that mandates an employer must pay for the retest. Moreover, this issue is moot because a retest did occur and the results were positive for marijuana.” On these findings, the Court upheld the Board of Review decision finding Claimant disqualified for benefits under 29(1)(m).

Digest author: Laura Page, Michigan Law, Class of 2018
Digest updated: November 26, 2017