14. Disqualifications - Other

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Cite as: Henderson v Peterman Mobile Concrete, Inc, unpublished opinion of the Kalamazoo Circuit Court, issued November 3, 2004 (Docket No. 04-00157-AE).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